HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Nathalie Samson Applicant
-and-
Tal Group Inc. and Shoppers Drug Mart Inc. Respondents
AND
Nathalie Samson Applicant
-and-
Tal Group Inc. and Katz Group Inc. Respondents
INTERIM DECISION
Adjudicator: Maureen Doyle Date: June 28, 2012 Citation: 2012 HRTO 1234 Indexed as: Samson v. Tal Group Inc.
WRITTEN SUBMISSIONS
Nathalie Samson, Applicant Self-represented
Tal Group, Respondent Michael O’Brien, Counsel
Katz Group, Respondent Peigi Ross, Counsel
Shoppers Drug Mart, Respondent Craig Colraine, Counsel
Introduction
1These are Applications filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of disability.
Tribunal File No. 2011-08480-I
2In her Application against TAL Group Inc. (Tal) and Shoppers Drug Mart (SDM), the applicant stated that she worked as a replacement pharmacist for the Tal agency, at various pharmacies in her region. She alleged that she suffered a torn muscle in her calf on April 4, 2010 and needed to use crutches for an indeterminate period of time. She alleged that she informed a contact at Tal of her situation and asked that she be permitted to work seated. She alleged that Tal advised her that they had checked with their pharmacy client, her request was refused, her work assignments were cancelled and she was not considered for future assignments.
3By way of remedy, she seeks financial compensation for salary loss for a period of two months and financial compensation for injury to dignity, insult and self-respect and her profession( original text: “atteinte à ma dignité, insulte, respect de soi et ma profession”). She seeks rules to ensure that pharmacists with temporary or permanent disabilities will be able to work as pharmacists without the pharmacy being able to say that they are too busy to accommodate work restrictions.
4The respondent Tal submits that the applicant was not its employee, but rather, was an independent contractor. The respondent alleged that on April 8, 2010, the applicant emailed one of Tal’s recruiters regarding her “shifts for the next 2 weeks”. She stated that she had a torn leg muscle and was on crutches until further notice from her doctor, that she was able to perform her work as a pharmacist, but would need to work seated. The respondent Tal alleged that it contacted PharmaPlus of the applicant’s circumstances and PharmaPlus advised that it could not accommodate her. Her booking for PharmaPlus for April 15, 18 and 30, 2010, was cancelled. The respondent Tal submitted that those were the only bookings cancelled due to the applicant’s stated restrictions.
5The respondent Tal also alleged that on April 13, 2010, Tal’s recruiter emailed the applicant inquiring into her interest in working a shift at SDM on April 18, 2010 and that the applicant emailed back indicating that she would work that shift, subject to the previously stated restrictions. The respondent Tal alleged that “Before further action was taken, the recruiter responsible to find a replacement pharmacist recruited another pharmacist for the shift”.
6The respondent Tal also alleged that it contacted the applicant on April 28, 2010 to see if she could work between May 3 and 9, but that she stated that she was injured and could not work as she could not stand for long periods of time. The respondent Tal does not indicate if there was a particular pharmacy for which it was inquiring into the applicant’s availability between May 3 and 9, 2010. The respondent Tal also indicates that it scheduled the applicant for work May 27 and 28 and June 4, 2010, and that she did work those shifts, though it does not indicate if the applicant’s restrictions continued to be in place at that point.
7The respondent SDM submitted that it never had an association with the applicant, never employed her, has no association with the respondent Tal and never engaged Tal to provide services “on its behalf with respect to the applicant, or any other matter”.
8By way of Reply, the applicant asserted that she has worked as a relief pharmacist for SDM and that she has timesheets indicating time she has worked at SDM, with such shifts having been administrated by the respondent Tal.
Tribunal File No. 2011-08426-I
9In her Application against Tal and the Katz Group Inc. (Katz), the applicant makes the identical allegations to the ones she makes against Tal and SDM.
10By way of remedy, she seeks financial compensation for salary loss for a period of two months and for injury to dignity, insult and self-respect and her profession. She seeks an order that this matter not prejudice her future employment and seeks rules to ensure that pharmacists with temporary or permanent disabilities will be able to work as pharmacists without the pharmacy being able to say that they are too busy to accommodate work restrictions.
11Counsel for the respondent Tal at that time filed a response indicating essentially the same position as noted above regarding its response to the Application in Tribunal File No. 2011-08480-11.
12The respondent Katz denied it had discriminated against the applicant. It submitted that it had no employment relationship with the applicant. Rather, Katz stated that it contracts with Tal to provide it with temporary pharmacists to work on a short term basis in its pharmacies, on an “as needed” basis, and that this was the basis upon which the applicant was supplied to work at one of its pharmacies. It submitted that when Tal inquired as to whether the applicant could perform her duties while seated, Katz reviewed the matter and determined that she would not be able to perform the essential duties of her position in that manner. It submitted that accordingly it informed Tal that it would not be able to accommodate the applicant, as it could not do so without undue hardship.
Rule 1.7(d)
13The Tribunal issued a Case Assessment Direction (CAD) in this matter, noting that there appeared to be significant overlap in the allegations of discrimination in both Applications and directing the parties to make submissions regarding the question of whether it is appropriate for the Tribunal to consolidate or hear these Applications together.
14According to Rule 1.7(d) of the Tribunal’s Rules of Procedure, the Tribunal may consolidate or hear Applications together “in order to provide for the fair, just and expeditious resolution of any matter before it”.
15The applicant wrote to the Tribunal, submitting that the matters should not be consolidated or heard together because there would be an imbalance of legal representation in the respondents’ favour and she submitted that the situations are slightly different.
16Counsel for the respondent Tal wrote to the Tribunal, advising that it does not object to the consolidation or hearing of both Applications together. Counsel for the respondent Katz indicated that it does not object to the “joinder” of the two Applications. The respondent SDM has taken no position with regard to the question of consolidation or hearing both Applications together.
17In Persaud v. Toronto District School Board, 2008 HRTO 25, the Tribunal adopted the reasoning of the Canadian Human Rights Tribunal in Lattey v. Canadian Pacific Railway, 2002 CanLII 45928 (CHRT), which set out the factors which should be considered in deciding whether to consolidate or hear proceedings together:
(a) The public interest in avoiding a multiplicity of proceedings including considerations of expense, deal, the convenience of the witnesses, reducing the need for the repetition of evidence and the risk of inconsistent results;
(b) The potential prejudice to the respondents that could result from a single hearing including the lengthening of the hearing for each respondent as issues unique to the other respondent are dealt with, and the potential for confusion that may result from introduction of evidence that may not relate to the allegations specifically involving one respondent or the other; and
(c) Whether there are common issues of fact or law.
18In my view, the Applications should be consolidated and heard together. As noted above, the applicant’s allegations in both matters are identical and the respondent Tal’s response in both matters is essentially the same. The financial remedy sought by the applicant in both matters is largely the same. There are common and overlapping issues of fact and law and there is a public interest in avoiding multiple proceedings. Consolidation will reduce the need for repetition of background and will avoid the possibility of inconsistent results.
19Though the applicant has submitted that there will be an imbalance of legal representation, I am not persuaded that it is a compelling reason not to consolidate the Applications in these circumstances. Further, while the respondents Katz and SDM have filed different responses to the respective Applications, no prejudice has been alleged by the respondents with respect to the question of consolidation. While consolidating these two Applications will undoubtedly lengthen the amount of evidence that needs to be heard in one proceeding, this in my view is preferable to having two separate proceedings and the resulting delay and duplication of evidence.
20For all these reasons, I find that it is fair, just and expeditious to consolidate these Applications and to hear them together.
Order
21The Applications are consolidated and will be heard together.
22I am not seized.
Dated at Toronto, this 28th day of June, 2012.
Signed by
Maureen Doyle Vice-chair