Woods v. BMO Nesbitt Burns, 2012 HRTO 1377

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Gary Woods Applicant

-and-

BMO Nesbitt Burns Respondent

DECISION

Adjudicator: Brian Cook Date: July 13, 2012 Citation: 2012 HRTO 1377 Indexed as: Woods v. BMO Nesbitt Burns

APPEARANCES

Gary Woods, Applicant Self-represented

BMO Nesbitt Burns, Respondent Malcolm MacKillop, Counsel

Introduction

1This is an Application 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.

2A hearing was held on June 4, 2012. Further to Interim Decision 2011 HRTO 1396, and an earlier Case Assessment Direction dated August 30, 2011, the issues in the hearing were as follows:

a. Should the Application be dismissed because it was not filed in time and because the delay was not incurred in good faith or results in prejudice to the respondent?

b. Should the Application be dismissed because the allegations in the Application do not relate to acts of discrimination within the meaning of the Code?

c. Should the Application be dismissed because there is no reasonable prospect that it can succeed?

Background

3Except as identified below, the background facts are not in dispute.

4The applicant started his employment with the respondent in 1985. The last position he held was Senior Options Trader. In 2000, the applicant went off work because of a disability. He was granted long term disability benefits by the respondent’s insurer.

5In 2001 there was a brief return to work that was facilitated by the insurer. The applicant was not able to successfully return to work and remained off work in receipt of long term disability benefits.

6In 2005, the insurer determined that the applicant could again attempt a return to work. On November 21, 2005, the respondent’s Human Resources Consultant wrote a letter to the applicant advising him that his position had been eliminated due to a restructuring that occurred while he was off work. He was advised that if he was unable to find a suitable position by December 1, 2005, he would be provided “with details with respect to your severance package.”

7On December 1, 2005, the employer’s Human Resources Consultant wrote to the applicant to advise that long term disability benefits had again been approved by the insurer and that as a result, the applicant should disregard the letter of November 21, 2005.

8The applicant remained off work and in receipt of long term disability benefits until about September 2007 when the insurer stopped paying benefits. In December 2008, the insurer retroactively restored long term disability benefits but only to December 2007. It appears that the review by the insurer occurred after BMO Nesbitt Burns questioned why the applicant was not entitled to continuing long term disability benefits. It appears that the insurer concluded that by December 2007 the applicant was not co-operating in rehabilitation measures as he was required to do under the insurance contract. The applicant has received no long term disability benefits for any period after December 2007.

9At the hearing, the applicant indicated that he tried to contact the employer’s Human Resources department on a number of occasions in 2008. He agreed with the respondent’s counsel that his contacts were made only after regular business hours. He agreed that the Human Resources department might have tried to contact him during regular business hours but they never succeeded in reaching him. At the hearing the applicant indicated that he did not feel that he was capable of working in 2008, or at any time since he first went off work although he remains optimistic about the future.

10On January 29, 2009, the respondent’s Human Resources Consultant wrote to the applicant to advise that he could either appeal the decision of the insurer by February 22, 2009 or contact the Human Resources Consultant if he wished to return to work. At the hearing, the applicant stated that he did not receive this letter. However, he agreed that he had received a letter in December 2008 from the insurer telling him that he could appeal the decision that he was not entitled to further long term disability benefits, although he believes that letter indicated that he was required to appeal by February 12, 2009. There is no dispute that the applicant did not appeal the decision of the insurer.

11On March 29, 2010, the applicant filed an Application (“the March 2009 Application”) with the Tribunal. It named BMO Nesbitt Burns and the Manulife Insurance Company (“Manulife”), which was then the provider of long term disability insurance.

12On August 12, 2010, the applicant filed a Request to Withdraw (Form 9) advising that he wished to withdraw the March 2009 Application. The respondents did not file a Response to the Request to Withdraw. The Tribunal granted the request to withdraw the March 2009 Application and closed its file on August 18, 2010.

13On November 4, 2010, the applicant filed another Application (“the November 2010 Application“) with the Tribunal. The November 2010 Application named the respondent and the law firm the respondent retained for the March 2009 Application as respondents, but did not name Manulife. The November 2010 Application is the subject of this Decision.

14In Interim Decision 2011 HRTO 1396, dated July 26, 2011, I dismissed the Application as against the law firm on the grounds that the allegations about the law firm were not within the Tribunal’s jurisdiction to consider.

15On September 15, 2010, before he filed the November 2010 Application, the applicant sent an email to the respondent’s Human Resources department. The email deals with a number of matters, including the applicant’s belief that the respondent is a sponsor of the Toronto Gay Pride parade which the applicant feels is not appropriate. In the email, the applicant indicated that he was “exercising my Human Right to decline further employment ties” with the respondent. However, he indicated that he was “not actually quitting my job” but was instead refusing to be complicit in what he feels is an inappropriate sponsorship of the Gay Pride Parade.

16On September 16, 2010, the respondent’s Human Resources department sent the applicant a letter advising him that the respondent “accepts you resignation effective immediately.”

17The November 2010 Application identified goods services and facilities, as the area of alleged discrimination. It did not identify employment as an area of alleged discrimination.

18The November 2010 Application sets out some of the applicant’s reasons for his concern about the respondent’s purported sponsorship of the Gay Pride parade, and his view that this support condones child abuse. It also references the history of the applicant’s employment with the respondent.

19Following receipt of the respondent’s Response, I issued a Case Assessment Direction that directed that a hearing be held to deal with the issues noted at the beginning of this Decision.

Alleged discrimination in services

20The November 2010 Application relates in part to the applicant’s concerns about the respondent’s alleged support for the Toronto Gay Pride parade.

21On this point, I note that it is not clear the respondent is in fact a sponsor of the Toronto Gay Pride parade. However, I accept the applicant’s submission that he was adversely affected by what he observed at the Gay Pride parade. He says that it stirred up past emotional scars going back to his childhood. However, I am also satisfied that, in the circumstances of this case, if the respondent is a sponsor of the Gay Pride parade, such sponsorship did not result in discrimination against the applicant. First, it is clear that there was no discrimination in the area of goods, services and facilities, the area indicated in the Application. If the respondent sponsored the Gay Pride Parade, it was not providing a good, service or facility to the applicant in so doing.

22For the area of “services” to be engaged, there must be some sort of service relationship, as opposed to a mere interaction, between the parties: Cooper v. Pinkofskys, 2008 HRTO 390.

Alleged discrimination in employment

23While the applicant’s written material and argument only explicitly raised the social area of “services” there is some question based on the arguments he raised whether he may have intended to also argue discriminatory conduct by his employer in respect of “employment.” It is unnecessary for me to specifically determine whether I would have allowed an amendment to the Application in this regard because even if the applicant were to include the area of employment as well as goods, services and facilities, there would still be no discrimination contrary to the Code.

24Section 5(1) of the Code provides as follows:

5. (1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status or disability.

25There is no basis to suggest that the applicant was denied the right to equal treatment without discrimination because of his understanding that his employer was a supporter of the Gay Pride Parade. There is no suggestion that the applicant would have been required to personally support the Gay Pride Parade if he had been in the workplace at the time that the support may have occurred. Even if he had been, there is no basis for a conclusion that this would have resulted in the denial of the right to equal treatment without discrimination on the basis of any of the grounds identified in section 5(1).

26In Andrews v. Law Society of British Columbia, 1989 CanLII 2 (SCC), [1989] 1 S.C.R. 143, the Supreme Court of Canada explained what “discrimination” means in the following terms:

I would say then that discrimination may be described as a distinction, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations, or disadvantages on such individual or group not imposed upon others, or which withholds or limits access to opportunities, benefits, and advantages available to other members of society. Distinctions based on personal characteristics attributed to an individual solely on the basis of association with a group will rarely escape the charge of discrimination, while those based on an individual’s merits and capacities will rarely be so classed. [pp. 174-75]

27In this case, there is no basis to conclude that the applicant’s understanding that the respondent supported the Gay Pride parade resulted in any burden, obligation or disadvantage on him that was not imposed on any other employee or that any opportunity, benefit or advantage was withheld.

28I am satisfied that there is no reasonable prospect that the applicant could establish that he experienced discrimination by any support the respondent may have given to the Gay Pride Parade.

Alleged failure to accommodate the applicant’s disability

29The November 2010 Application also relates to the applicant’s allegations that the respondent failed to offer appropriate accommodation of his disability to allow him to return to work at various times. I have assumed, for the purposes of the following analysis that the allegations are in relation to the social area of “employment.” The applicant agrees that any issues he may have with the respondent’s insurer in respect of its decisions about his entitlement to long term disability benefits is not relevant to the November 2010 Application.

30The applicant identified three periods when there was some discussion about a return to work. The first period was in 2001 when he did briefly but unsuccessfully return to work. The second period was in 2005 when the insurer discontinued long term disability benefits for about one month and then reinstated the benefits. In that time, the respondent advised the applicant that his position was no longer available and that he might be entitled to a severance package. However, that information was retracted when long term disability benefits were restored.

31The third period was in 2008 when the applicant was attempting to contact the respondent’s human resources department after hours. He was unable to make contact because he called after regular hours and he was not available during regular hours. It appears that these attempts lasted for a brief period in 2008.

32In my view, there is no reasonable prospect that the applicant could establish that the events in the periods when there was discussion about a return to work infringed the applicant’s Code-protected rights. The applicant has indicated that he has been unable to work since 2001. He has indicated that he believes he is entitled to long term disability as a result. The applicant indicated that his condition may be improving and he continues to be optimistic about the future. The applicant indicated that his disability significantly impacts his activities of daily living. There is evidence that he has experienced difficulties in dealing with requests for information. For example, in 2005, one of the reasons that the return to work process broke down was that the applicant became frustrated in his attempts to compile a resume. The reason he gave for withdrawing the first Application included his inability to contemplate a mediation process with the respondent.

33In these circumstances, including in particular the applicant’s own admission that he could not return to work, I find that the applicant has no reasonable prospect of establishing that the respondent breached its duty to accommodate by failing to allow him to return to work.

Alleged discrimination by termination of employment

34At the hearing the applicant suggested that the respondent may have discriminated against him by terminating the employment relationship when the applicant was still off on a sick leave.

35The employment relationship ended on September 16, 2010, when the respondent sent a letter in response to the applicant’s September 15, 2010 email about the reasons the applicant had withdrawn the first Application. The respondent’s letter stated that the respondent “accepts your resignation effective immediately”.

36As discussed at the hearing, in my view there is some question as to whether the applicant’s September 15, 2010 email was in fact a resignation of employment, particularly as the email itself said that the applicant was “not actually quitting my job”.

37However, assuming that the respondent misinterpreted the applicant’s email, and even assuming for the purposes of this decision that the respondent’s action constituted a termination based in whole or part on the applicant’s ongoing disability I find that the applicant has no reasonable prospect of establishing such a termination could have constituted discrimination by the respondent contrary to the Code.

38Section 17 of the Code provides as follows:

17. (1) A right of a person under this Act is not infringed for the reason only that the person is incapable of performing or fulfilling the essential duties or requirements attending the exercise of the right because of disability.

(2) No tribunal or court shall find a person incapable unless it is satisfied that the needs of the person cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.

39Under the Code discrimination does not result if the employee is incapable of performing the essential duties of the job unless the employee could do the essential duties of the job with accommodation to the point of undue hardship.

40If an employee is off work because of a disability, the employer may be required to allow the applicant to return to work at such time as the applicant is capable of returning to some form of work and then to provide further accommodation as necessary. However, the Supreme Court of Canada has confirmed that an employer is not required to keep a position available to the applicant forever: McGill University Health Centre (Montreal General Hospital) v. Syndicat des employés de l'Hôpital général de Montréal, 2007 SCC 4, [2007] 1 SCR 161.

41At a certain point, the employment contract may be frustrated because the employee has not been able to return and is not likely to be able to return to employment. In McGill, the Court found that it was not discriminatory for the employer to terminate the employee’s employment after a period of three years. In the present case, the applicant had been off work for approximately ten years. As noted, the applicant does not dispute that he has been unable to return to work in this period.

42In the circumstances of this case, I am satisfied that there is no reasonable prospect that the applicant could establish that the September 16, 2010 letter from the employer that “accepted his resignation” was discriminatory under the Code even if it amounted to termination rather than acceptance of a resignation.

43For all of these reasons, I find that the Application must be dismissed.