Ivanescu v. Credit Valley Hospital, 2012 HRTO 1352

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Eugene Ivanescu on behalf of Anna Ivanescu

Applicant

-and-

Credit Valley Hospital

Respondent

INTERIM DECISION

Adjudicator: Sheri D. Price Date: July 6, 2012 Citation: 2012 HRTO 1352 Indexed as: Ivanescu v. Credit Valley Hospital

1In this Application, filed under s.34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), the applicant alleges that the respondents discriminated against the claimant, his wife, on the basis of disability with respect to employment.

2The claimant worked for the respondent hospital as a lab technician. She was off work for most of 2009 while she was being treated for cancer and recovering from that treatment.

3The applicant alleges that the failure and/or refusal to accommodate the claimant's disability-related needs when she attempted to return to work from disability leave in 2010 constituted discrimination on the basis of disability. In particular, the applicant contends that it was discriminatory to require the claimant, upon her return to work, to work all assigned shifts, including night shifts, because the claimant was unable to work night shifts because of her disability.

4The applicant named the claimant's employer, Credit Valley Hospital, as well as The Manufacturers Life Insurance Company ("Manulife") and Acclaim Ability Management ("Acclaim"), as respondents to the Application.

5Acclaim Ability Management is a disability management company that, during the relevant time frame, provided the respondent hospital with staff to work in the hospital's occupational health department, which department was involved in co-ordinating the claimant's attempted return to work in 2010.

6Manulife is the insurer that provided the claimant with Long Term Disability ("LTD") benefits during the period that she was off work due to disability. In early 2010, while the claimant was still in receipt of LTD benefits, Manulife became involved in discussions with the claimant, the applicant and the respondent hospital (represented largely by Acclaim employees working in the respondent's occupational health department) about the terms of the claimant's return to work. Ultimately, those discussions did not result in the claimant returning to work with the respondent hospital, because the parties did not agree on the nature of the accommodations required in order for the claimant to return to work. In particular, and as noted above, the respondent hospital did not agree to exempt the claimant from working night shifts upon her return to work, an accommodation that the claimant (and her husband, the applicant) maintained that she needed because of disability. Manulife terminated the claimant's LTD benefits effective June 24, 2010, on the basis that the claimant would have been able to perform her previous occupation as of that date, if she had participated in the 12-week gradual return to work program offered to her by the hospital in March 2010 (i.e. one that included night and shift work).

REMOVAL OF MANULIFE AND ACCLAIM AS PARTIES TO THE PROCEEDING

7This Interim Decision addresses a Request for an Order during Proceedings by Manulife and Acclaim removing them as parties to the proceeding. Manulife and Acclaim submit that they ought to be removed as parties to the proceeding because there is no basis upon which they might be found to have infringed the claimant's rights under the Code.

Submissions of the Parties

8The applicant opposes the removal of Manulife as a party to the Application. He submits that Manulife is properly involved in the case because, as the LTD insurer, Manulife ought to have facilitated the claimant's safe return to work with proper accommodations in place. In spite of this, Manulife did nothing to help the claimant return to work, submits the applicant. On the contrary, the applicant submits that Manulife prevented the claimant from returning to work with proper accommodation by "hiding" relevant information about the claimant's medical restrictions from the applicant and the claimant. In particular, when Manulife received a February 26, 2010 medical report from the claimant's doctor indicating that the claimant was unable to work nights/shifts upon her return to work, it did not share that information with the claimant and the applicant or even the respondent employer. Instead, the applicant submits that Manulife disregarded the February 26, 2010 medical report and proceeded to conclude that the claimant was able to work night shifts when she returned to work. Moreover, the applicant submits that, instead of telling the claimant and the applicant that the medical documentation that had been submitted was insufficient to substantiate the claimant's disability-related needs, and explaining what was needed, Manulife and the other respondents practically ignored the claimant and the applicant in the return to work process. The applicant also submits that the Manulife case manager who was handling his wife's claim lied to the applicant by stating that the claimant's doctor told Manulife, in October 2009, that the claimant was ready to return to work, and by stating that a Manulife rehabilitation specialist would be taking over the claimant's file. In fact, no rehabilitation assistance was forthcoming, submits the applicant. The applicant submits that although he and the claimant were led to believe that Manulife was working to help the claimant return to work, in fact, nothing was being done and the case had actually been closed. The applicant submits that, given Manulife's role in frustrating the claimant's attempt to return to work with proper accommodation, Manulife ought to be maintained as a respondent to the Application. The applicant submits that it is important to retain Manulife as a respondent so that the Tribunal can impose remedies upon it in the public interest.

9The applicant submits that Acclaim is also a proper respondent to the Application. The applicant submits that Acclaim was supposed to collaborate to find a way to reintegrate the applicant into the workforce, but failed to do so. For example, the applicant submits that one Acclaim employee working in the hospital's occupational health department, Norma Cerepnalkovic, told him in mid-April 2010 that the fact that the claimant wanted to take a one-month vacation during her gradual return to work was what was preventing the parties from moving forward (because a vacation of that duration would frustrate the work-hardening aspect of the plan, she said). However, the applicant submits that the vacation request was always just that, a request, not a demand, to allow the claimant to see her 90-year old mother. He submits that all of the parties knew that and the vacation request should never have been treated as a barrier to the claimant returning to work. The applicant is also aggrieved by the fact that Acclaim employees working in the hospital's occupational health department accused him of behaving in an aggressive manner in his dealings with them about his wife's return to work. This, submits the applicant, was absolutely false.

10Manulife submits that it cannot be held liable for any breach of the duty to accommodate the claimant's disability-related needs in the workplace because, as the insurer, it lacked the knowledge required to determine whether the applicant's disability-related needs could be accommodated and the ability to implement any accommodations. Manulife submits that the duty to accommodate an employee's disability-related needs with respect to employment rests squarely on the employer, who has the information required in order to determine whether and how the employee's needs may be accommodated in the workplace, short of undue hardship. For example, Manulife submits that, as the insurer, it has no way of knowing how proposed accommodative measures will affect other employees in the workplace or what health and safety issues may arise as a result of a particular accommodation being implemented. Manulife submits that, in any event, as the insurer, it lacked the ability to accommodate the claimant because it had no control over her workplace or the terms and conditions of her employment. It simply had no ability to modify the workplace and/or the claimant's job duties to meet her needs. It would be unfair, submits Manulife, to hold it liable for breaching a duty to accommodate that it has no power to fulfill.

11Moreover, to the extent that the Tribunal finds that the claimant's right to be accommodated was breached because the respondent employer relied upon Manulife's assessment of the claimant's medical restrictions (an assessment that Manulife submits it made in the context of determining the claimant's eligibility for ongoing LTD benefits), the responsibility for that breach rests solely with the respondent employer, which chose to rely upon Manulife's assessment of the claimant's medical evidence.

12Manulife submits that its determination that the claimant was capable of working night shifts upon her return to work in 2010 was based on its assessment of the sufficiency of the claimant's medical evidence. The applicant clearly disagrees with Manulife's determination as to the level of the claimant's disability. However, even if Manulife's determination was wrong, that does not make it discriminatory, submits Manulife. In order for the Tribunal to conclude that Manulife's assessment was discriminatory, there would have to be facts alleged that would allow the Tribunal to conclude that, in coming to the conclusion it did about the claimant's medical restrictions, it treated the claimant in a disadvantageous manner "because of disability". There are no such facts alleged here, submits Manulife, and so there is no basis upon which Manulife could be found liable for discriminating against the claimant, contrary to the Code: Zaki v. Ontario (Community and Social Services), 2011 HRTO 1797, at paras. 1 and 14.

13For its part, Acclaim submits that it is difficult to see how the applicant could point to anything that Acclaim did as a corporate entity that arguably infringed the claimant's rights under the Code, given that Acclaim had no involvement in the claimant's attempt to return to work and made no decisions about whether the claimant's alleged disability-related needs would or could be accommodated in the workplace. Acclaim as a corporate entity had no file on the claimant and no access to her medical documentation. Moreover, to the extent that Acclaim employees working in the hospital's occupational health department did anything to infringe the claimant's rights under the Code, the hospital submits that it is liable for their actions pursuant to s.46.3 of the Code and in any event assumes liability for their actions. This is in keeping with the hospital's acknowledgement that employees supplied to it by Acclaim effectively functioned as temporary employees of the hospital and were under its complete direction and control in their day-to-day activities. It should be noted that Acclaim employees who were originally named as personal respondents to the Application were removed as parties to the proceeding based, in part, on the hospital's liability for their actions: Ivanescu v. Credit Valley Hospital, 2011 HRTO 997, at para. 26.

14The respondent employer, Credit Valley Hospital, takes no position on whether Manulife and Acclaim ought to be removed as parties to the Application. However, it clarifies that Manulife was acting as its agent with respect to the assessment of the claimant's medical evidence and in determining what disability-related restrictions her medical evidence supported. In the circumstances, the respondent hospital acknowledges that if any of Manulife's actions in those regards were found to have infringed the claimant's rights under the Code, then the hospital, as the claimant's employer, would be liable for such actions. Accordingly, the claimant would not be prejudiced by Manulife's removal as a party to the proceeding.

15Similarly, and as noted above, there is no question that the Acclaim employees who were involved in the claimant's attempt to return to work were acting at all times as agents of the respondent hospital and that the hospital is liable for their actions, in the event that such actions are found to have infringed the claimant's rights under the Code.

DECISION

16The Tribunal has held that in order for a named respondent to be a proper party to a proceeding, among other things, there must be allegations against the respondent that, if true, could lead to a finding that the proposed respondent violated the Code: Smyth v. Toronto Police Services Board, 2009 HRTO 1513, at para. 12; Tyrell v. Lake Promenade Apartments, 2010 HRTO 1846, at para. 4-5; Bartlett v. Hydro One Networks, 2012 HRTO 212, at para. 92.

17This is because the Tribunal has no jurisdiction to deal with general claims of unfairness or mistreatment, however serious, if such unfairness or mistreatment does not constitute discrimination under the Code.

18In this case, the applicant alleges that the claimant's right to be free from discrimination was infringed when she was required to work night shifts upon her return to work from a disability leave. Specifically, the applicant alleges that the normal job requirement that lab technicians, such as the claimant, work night shifts had an adverse effect on the claimant because of her disability; and that the inability of the claimaint to work night shifts gave rise to a duty to accommodate her by exempting her from the requirement to work night shifts.

19There is no doubt that Manulife played a significant role in the events that led to the applicant being required to work night shifts upon her return to work. Following a February 18, 2010 meeting between the claimant, the applicant, the hospital and Manulife to discuss the claimant's return to work, it was agreed that Manulife would write to the claimant's doctor seeking clarification as to the claimant's disability-related work restrictions. The resultant medical report, dated February 26, 2012, stated that the claimant was unable to work nights or shifts upon her return to work. However, Manulife did not advise the respondent employer of that fact. On the contrary, there is no dispute that, on March 29, 2010, and following a review of the family doctor's February 26, 2010 report by an internal medical consultant, Manulife emailed the respondent hospital to advise that there were "no medical contraindications" to support that the claimant could not work shifts upon her return to work. According to the respondent hospital, it accepted and relied upon Manulife's assessment regarding the applicant's medical restrictions and structured its offers to return the claimant to work around the information Manulife provided. Thus, the respondent employer refused to exempt the claimant from working night shifts upon her return to work as a form of accommodation.

20The fact that Manulife played a significant role in the events giving rise to the Application, however, is not sufficient reason to find that Manulife is a proper party to the proceeding. As noted above, the question is whether there is a basis upon the facts as alleged that Manulife might be found to have discriminated against the claimant, contrary to the Code. If not, then Manulife is not properly named as a respondent to the Application.

21The discrimination claim in this case rests primarily on the assertion that requiring the claimant to work nights upon her return to work was discriminatory on the basis of disability. However, the requirement that the claimant work nights upon her return to work was not Manulife's. It was the respondent employer's. True, the respondent employer relied upon information received and/or assessments done by the LTD insurer when it decided not to exempt the claimant from working shifts and/or nights upon her return to work. However, that does not change the fact that it was the respondent employer, not Manulife, who controlled the claimant's terms and conditions of employment, including her hours of work. Correspondingly, the ability and the duty to accommodate the claimant's disability-related needs, up to the point of undue hardship, lay with the respondent employer. I agree with Manulife that, as the LTD insurer, it did not have the ability to exempt the claimant from the ordinary requirement that she work shifts and/or nights upon her return to work, even if it had found that the claimant's medical evidence supported such a restriction. In the circumstances, I find that there is no basis upon which I might conclude that Manulife discriminated against the claimant by failing to accommodate her disability-related needs in the workplace.

22As for the applicant's allegation that Manulife mistreated him and the claimant in the administration of the claimant's LTD claim by misleading them about what information had been received from the claimant's doctors and/or by failing to communicate with them, I agree with Manulife that there are no factual allegations, in this case, upon which I might conclude that such alleged mistreatment was "because of" the claimant's disability. Accordingly, there is no basis upon which I might conclude that such actions were discriminatory within the meaning of the Code: Westgarth v. Great West Life Assurance, 2011 HRTO 1189, at para. 14-15.

23Nor are there any allegations that, if true, could lead to a finding that Acclaim infringed the claimant's rights under the Code. Whatever role Acclaim employees might have played in the workplace on behalf of and as agents of the respondent employer, Acclaim itself, as a corporate entity, did not impose the allegedly discriminatory requirement that the claimant work nights and did not have the power to exempt her from that requirement. In the circumstances, I do not see any basis upon which Acclaim might be found to have discriminated against the claimant contrary to the Code. Acclaim, like Manulife, ought to be removed a a party to the proceeding.

24In sum, I find that there are no allegations that, if true, could lead to a finding that Manulife's and/or Acclaim's actions constituted discrimination against the claimant on the basis of disability within the meaning of the Code. Manulife and Acclaim are therefore removed as parties to the proceeding and the style of cause is amended accordingly.

WHETHER PROCEEDING OUGHT TO BE BIFURCATED

25During the May 30, 2012 teleconference hearing in respect of this matter, I heard submissions from the parties with respect to whether the hearing ought to be bifurcated, to hear and determine the issue of liability separately from the issue of remedy (in the event that liability is found).

26In the circumstances of Manulife's and Acclaim's removal as parties to the proceeding, the respondent employer submits that the hearing ought not to be bifurcated. The applicant similarly opposes bifurcation and submits that there should be only one hearing to determine the issue of liability and remedy.

27I agree with the parties that the hearing ought not to be bifurcated. Thus, the upcoming hearing will address whether whether the respondent employer infringed the claimaint's rights under the Code, as well as the the appropriate remedy to be ordered, in the event that liability is established.

PRODUCTION OF MEDICAL DOCUMENTS

28By Interim Decision dated June 19, 2012, I directed the applicant to produce the following documents to the Tribunal and the respondents by July 3, 2012:

Any and all documents the claimant's family doctor intends to refer to or rely upon to provide evidence in this matter, including but not necessarily limited to:

(a) any notes of the appointments and/or discussions during which the doctor's February 2010 notes/medical reports were written;

(b) any documents that gave rise to the doctor's conclusions about the claimant's work restrictions; and

(c) a list of appointments with the family doctor in February 2010, including any telephone appointments/consultations.

29By email dated July 3, 2012, the applicant indicated that the claimant's doctor was away on vacation in June and that the claimant was unable to get an appointment to see her until July 5, 2012. In the circumstances, the applicant asked that the July 3, 2012 deadline for the production of documents contained in the claimant's doctor's file be extended by "a couple of days".

30By letter dated July 4, 2012, counsel for the respondent hospital indicates that she requires the documents in question by no later than July 10, 2012, failing which she will not be in a position to cross-examine the applicant or the claimant on their evidence when the hearing resumes on July 13, 2012.

31In the circumstances, the applicant is directed to provide the respondent hospital with the documents that he was ordered to produce on June 19, 2012 as soon as possible and in any event by no later than July 10, 2012.

ORDERS

32The Tribunal makes the following orders:

a. Manulife and Acclaim are removed as parties to the proceeding and the style of cause is amended accordingly.

b. The hearing will not be bifurcated. The upcoming hearing will be to determine whether the respondent employer infringed the claimaint's rights under the Code as well as the the appropriate remedy to be ordered, in the event that liability is established.

c. The applicant is directed to provide the respondent hospital with the medical documents that he was ordered to produce on June 19, 2012 as soon as possible and in any event by no later than July 10, 2012.