HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Keron James
Applicant
-and-
Workplace Safety and Insurance Board, Frances Lord and Southrim Management Company Limited
Respondents
INTERIM DECISION
Adjudicator: Jennifer Scott
Indexed As: James v. Workplace Safety and Insurance Board
APPEARANCES
Keron James, Applicant ) Stanley Saich and ) Krishna Badrinarayan, ) Representatives )
Southrim Management Company Limited ) Sharon Chilcott, Counsel
Workplace Safey and Insurance Board and ) Frances Lord ) Gurjit Brar, Counsel
1This is an Application filed on September 2, 2011 under s. 34(1) of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”). The applicant alleges discrimination in services and employment on the grounds of disability and race.
2The applicant had previously withdrawn her allegations against the Labourers’ International Union of North America, B & S Associates Professional Corporation, and a number of other personally named respondents. The style of cause has been amended to reflect this.
3The Application names the employer as Southrim Enterprises Inc. carrying on business under a number of different business names. The Tribunal was advised that the correct corporate name for the employer is Southrim Management Company Limited. The style of cause has also been revised to reflect the correct corporate name.
4The applicant is a black woman who was in receipt of WSIB benefits at the time of the events giving rise to this Application.
5The Tribunal, on its own initiative, directed that a summary hearing be held to determine whether the Application should be dismissed in whole or in part on the basis that there is no reasonable prospect that it will succeed. The respondents were advised that they did not need to file Responses to the Application unless directed to do so by the Tribunal. The summary hearing was held on July 27, 2012.
6The allegations of discrimination concern a return to work meeting scheduled by the Workplace Safety Insurance Board (“WSIB”) to determine if the applicant could return to modified work at the workplace. The meeting took place at the employer’s premises. The meeting was attended by the WSIB return to work specialist Frances Lord (“Lord”), the applicant, the applicant’s union and legal counsel, and the employer’s representatives.
7The applicant alleges that during the return to work meeting, she requested that she be permitted to go home because she was feeling dizzy and unstable. She requested that the meeting be held at another time when her medical condition would allow her to attend. The applicant alleges she was discriminated against on the basis of her disability and race when the employer and the WSIB refused to accommodate her medical condition by adjourning the return to work meeting. She alleges further that Lord made discriminatory comments both before and during the return to work meeting. The applicant believes the employer is a party to the discrimination because it stood idly by during Lord’s discriminatory conduct.
8Rules 19A.1 and 10A.2 of the Tribunal’s Rules of Procedure read as follows:
19A.1 The Tribunal may hold a summary hearing, on its own initiative or at the request of a party, on the question of whether an Application should be dismissed in whole or in part on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.
19A.2 Rules 16 and 17 do not apply to summary hearings. The Tribunal may give directions about steps the parties must take prior to the summary hearing, including disclosure or witness statements.
9The issue that Rule 19A requires me to determine is whether the Application has no reasonable prospect of success. If a finding is made that the Application has no reasonable prospect of success, it is dismissd. In the absence of such a finding, the Application continues to proceed through the Tribunal’s procedure.
10In Dabic v. Windsor Police Service, 2010 HRTO 1994, the Tribunal clarified the issues on a summary hearing as follows:
In some cases, the issue at the summary hearing may be whether, assuming all the allegations in the application to be true, it has a reasonable prospect of success. In these cases, the focus will generally be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation.
In other cases, the focus of the summary hearing may be on whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated. Often, such cases will deal with whether the applicant can show a link between an event and the grounds upon which he or she makes the claim. The issue will be whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him or her can show a link between the event and the alleged prohibited ground.
11The applicant alleges she was discriminated against by Lord and the WSIB during the return to work meeting, a service provided by the WSIB. The applicant alleges that both before and during the return to work meeting Lord made discriminatory comments about the applicant’s medical condition. She alleges Lord made comments regarding her capacity to work that left her feeling depressed, sad and self-conscious about her disabilities. The applicant alleges further that Lord accused her of “gimmicking” which she believed was intended to suggest the applicant was “faking” her medical condition. Finally, the applicant alleges Lord questioned her prescription use by physically counting out her medications to determine the number of pills the applicant had taken that day. The applicant believes it was Lord’s disbelief of her medical condition that led to her refusal to accommodate the applicant’s medical condition by rescheduling the return to work meeting.
12The WSIB denies that the comments attributed by the applicant to Lord were made. It asserts the return to work meeting was adjourned because it was obvious to Lord that the applicant was in no condition to attend. The WSIB states Lord was acting within the scope of her duties and it is responsible for her conduct.
13The applicant alleges she was discriminated by the employer during her employment when it refused to adjourn the return to work meeting, the purpose of which was to determine if the applicant was capable of modified work. The applicant alleges further that the employer condoned the discriminatory conduct of Lord by failing to intervene.
14The employer denies there was a duty to accommodate the applicant because “dizziness” is not a disability under the Code. The employer asserts further that the return to work meeting was scheduled by the WSIB and the employer was required to attend. The employer alleges it had no control over Lord and no positive duty to stop her conduct especially given the fact that the applicant was represented by legal counsel at the meeting.
15The applicant states she has a disability under the Code because she was in receipt of WSIB benefits and “lack of physical coordination” is included in the statutory definition of disability under the Code.
16The applicant asserts the conduct of the respondents in their actions and inaction perpetuated negative stereotypes of persons with disabilities as being a burden on society, freeloading on the government, deceitful about their disabilities, not really being disabled and/or overstating disabilities for personal gain, and generally by not being treated as an equal to able-bodied persons. The applicant asserts further that the respondents discriminated against her on the basis of race and perpetuated stereotypes against black people.
17I am satisfied that the applicant has pointed to some evidence which if accepted may be able to demonstrate a link between the events alleged to have occurred and the grounds upon which she makes a claim against Lord and the WSIB. I recognize that there is a factual dispute as to whether Lord engaged in the conduct as alleged and whether the accommodation request was denied. This factual dispute cannot be determined on a summary hearing.
18I am also satisfied that the applicant may be able to establish a violation of the Code by the employer. An employer may have a duty to accommodate an employee in a return to work meeting called by the WSIB for the purpose of determining an employee’s ability to do modified work in the workplace. The relationship between an employer and the WSIB in a return to work meeting may be complex and that complexity cannot be resolved at a summary hearing.
19I am not satisfied there is no reasonable prospect the Application will succeed against the named respondents. The Tribunal will continue to process this Application.
20The respondents are directed to file their Responses within 35 days of the date of this Interim Decision.
21I am not seized of this matter.
Dated at Toronto, this 3rd day of August, 2012.
Signed by
Jennifer Scott
Vice-chair