Arends v. Children’s Hospital of Eastern Ontario, 2012 HRTO 1574

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jeanette Arends Applicant

-and-

Children’s Hospital of Eastern Ontario Respondent

DECISION

Adjudicator: Sheri D. Price Date: August 14, 2012 Citation: 2012 HRTO 1574 Indexed as: Arends v. Children’s Hospital of Eastern Ontario

APPEARANCES

Jeanette Arends, Applicant Self-represented

Children’s Hospital of Eastern Ontario, Respondent Vicky Satta, Counsel

1In this Application under s. 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (“the Code”), the applicant alleges that the respondent employer discriminated against her with respect to contracts and/or employment because of disability and reprised against her contrary to the Code.

2Specifically, the applicant, who worked for the respondent hospital as a nurse, alleges that the respondent’s attempt to collect an overpayment of wages from her while she was on disability leave had an adverse effect on her because of mental disability and was therefore discriminatory, contrary to the Code. The applicant also alleges that the respondent reprised against her for claiming or enforcing her rights under the Code when it sent the applicant’s debt to a collection agency.

3Pursuant to a Case Assessment Direction dated November 2, 2011, the Tribunal directed, on its own initiative, that a summary hearing be convened pursuant to Rule 19A of the Tribunal’s Rules of Procedure to determine whether the Application should be dismissed on the basis that there was no reasonable prospect that the Application would succeed. In its Case Assessment Direction, the Tribunal advised the parties that the Tribunal would dismiss the Application if, following the summary hearing, it found that the Application had no reasonable prospect of success.

4During the summary hearing, the applicant was given an opportunity to explain how she could establish that the respondent infringed her rights under the Code if the Application were permitted to proceed.

5For the reasons that follow, I find that the Application has no reasonable prospect of success. The Application is dismissed accordingly.

BACKGROUND

6The applicant went off work due to mental disability in 2009, following the death of her son. She attempted to return to work in January 2010, but had to go off on disability leave again in April 2010. As of March 23, 2012, the date of the summary hearing, the applicant continued to be off work on disability leave.

7The applicant alleges that, following her return to work in January 2010, data entry and other errors by the respondent hospital’s payroll department resulted in the applicant being overpaid by the respondent. The applicant submits that, although she brought such errors to the respondent’s attention each time they occurred, the errors continued and caused the applicant a significant amount of unnecessary stress. As a result of the respondent’s errors, the applicant indicates that, in respect of the period from January to April 2010, she was overpaid by the respondent by approximately $1000.

8Then, in June 2010, while she was still off work due to disability, the applicant received two paycheques from the respondent that she was not supposed to receive. The applicant was able to return one of these directly to the respondent. However, the other paycheque, for approximately $1500, became part of the overpayment to the applicant by the respondent.

9The applicant submits that, in August 2010, she and the respondent’s payroll manager worked out an agreement that the applicant would repay the respondent the monies that she owed it after she returned to work from disability leave. The applicant submits that, from that point onwards, everything was fine until December 2010.

10In December 2010, the applicant submits that the respondent’s payroll manager contacted the applicant and informed her that she was entitled to a retroactive wage payment pursuant to a collective agreement that had just been concluded between the applicant’s trade union and the respondent. However, instead of sending the applicant’s retroactive wage payment to her, the applicant submits that the payroll manager told her that the respondent intended to apply the retroactive payment to the applicant’s debt. The applicant submits that the respondent thus withheld approximately $1700 of the applicant’s “retro pay” and applied it to the applicant’s debt.

11The applicant felt that it was improper for the respondent to withhold her “retro pay” without her consent and sought the assistance of her trade union in having it returned to her. Through the union’s efforts, the parties reached an agreement in January 2011 that the respondent would return the applicant’s “retro pay” to her and, in turn, the applicant would start making $50 monthly payments towards her debt.

12On February 2, 2011, the respondent wrote to the applicant confirming her agreement to pay $50 a month towards her total overpayment of $2,574.62 and indicating that the applicant would be receiving her retroactive wage payment by direct deposit on February 11, 2011. In its February 2, 2011 letter, the respondent also wrote:

Please send in monthly cheques or post dated monthly cheques of $50 payable to CHEO directly to our Finance department attention Payroll. If a monthly payment is missed finance/payroll will send you a letter regarding the missing cheque. Please be advised if this occurs more than once, your file will be forwarded to collections. (emphasis added)

13Shortly after she had received her retroactive wage payment, the applicant took the position that she had been forced into the January 2011 agreement based on financial hardship related to her sick leave (i.e. the applicant submits that she had no choice but to enter into the repayment agreement because she needed her “retro pay” to cover certain expenses). Moreover, the applicant expressed the view that the respondent had taken advantage of her by requiring her to agree to start repaying the overpayment while she was still on sick leave.

14In accordance with this view, the applicant did not provide the respondent with any of the $50 monthly payments that she had agreed to start making in January 2011. Instead, in a series of correspondence from February 17, 2011, onwards, the applicant attempted to get the respondent to revert to its original agreement not to require the applicant to repay the monies owing until she returned to work from disability leave.

15The respondent refused to do this, however. It maintained that the agreement that was in effect was the January 2011 agreement, pursuant to which the respondent had returned the applicant’s retroactive wage increase to her, in exchange for the applicant’s agreement to immediately begin paying the respondent $50 per month towards her overpayment.

16On April 18, 2011, the respondent’s Finance/Payroll department wrote to the applicant to confirm that it had not received the applicant’s $50 payments for the months of February and March 2011. The letter advised the applicant to contact the Finance/Payroll office to arrange for payment by May 9, 2011, failing which her file would be forwarded directly to collections.

17On April 28, 2011, Ginette Champagne, the respondent’s Vice-President of Human Resources, wrote the applicant a letter, which stated in relevant part:

Based on the agreement between you and your Union representative, we have given your retroactive wage increase to you in full by way of direct deposit on February 11, 2011. To date we have not received your $50 for the months of February, March and April.

Given that you have failed to comply with the expectations in the agreement you have left us no choice but to forward your account to collections as of May 9, 2011.

18The applicant appears to have responded to Ms. Champagne’s letter in or around early May 2011. The applicant’s letter is actually dated “April 23, 2011”, but it seems that the letter must have been written after this date, since the letter, on its face, purports to respond to a letter from Ms. Champagne received on May 2, 2011.

19In her “April 23, 2011” letter, the applicant took the position that the respondent’s actions were a violation of her rights. Specifically, the applicant asserted that, under “disability law”, she did not have to pay her debt to the respondent while she continued to be off work on disability leave. The applicant threatened to commence legal action against the respondent if it followed through with its threat to forward her debt to collections. The applicant asserted that such legal action on her part “would not only eliminate this overpayment but award damages to [her] as well.”

20On May 11, 2011, Ms. Champagne wrote to the applicant again, stating:

… While I am sympathetic to your situation, the fact remains that because of an unfortunate error, you are now in an overpayment situation and owe CHEO $2574.62. Despite your previous agreement to repay this amount and our attempts to arrange a repayment plan suitable to you, we have yet to receive any monies from you. As a result, as I stated in my letter to you dated April 28th, we have now referred this matter to collections.

21On or about May 17, 2011, a collection agency contacted the applicant, indicating that the respondent had given it a mandate to recover the sum of $2,574.62 from the applicant on the respondent’s behalf.

22After she was contacted by the collection agency, the applicant wrote to the respondent again, on May 17, 2011. In her letter, the applicant took the position that the respondent was continuing to violate her rights and that its actions were negatively affecting the applicant’s ability to return to work. The applicant also indicated that since the respondent had forwarded her debt to collections, the applicant would be moving forward with legal action against the respondent.

23The applicant filed her Application against the respondent under the Code on July 18, 2011.

Discrimination because of Disability

24The applicant in this case does not allege that the respondent discriminated against her in a direct sense. The applicant submits that hers is rather a case of adverse effect discrimination.

25Specifically, the applicant alleges that the respondent’s attempts to collect the applicant’s overpayment pursuant to the agreement reached in January 2011 had an adverse effect on the applicant because of her mental disability. In particular, the applicant submits that the respondent’s attempts to collect the debt from the applicant while she was on disability leave caused her extreme stress. The applicant submits that, although she repeatedly conveyed this to the respondent, it persisted in trying to collect the applicant’s debt, exacerbating the applicant’s mental disability and impeding her attempt to return to work. The applicant submits that she thus had a disability-related need for the respondent to revert to its original agreement with the applicant; and to refrain from requiring the applicant to make any payments towards her debt until after she returned to work.

26Thus, the question in this case is whether the applicant has a reasonable prospect of success in proving that respondent’s duty under the Code to accommodate her disability-related needs required it to refrain from collecting the applicant’s overpayment until she returned to work from disability leave. In my view, she does not.

27In the employment context, it is well-established that the duty to accommodate is about enabling employees to participate in the workforce (i.e. work). The duty to accommodate does not, however, fundamentally alter the employment bargain by requiring the payment of wages for no work in exchange: Markovic v. Autocom Manufacturing Ltd., 2008 HRTO 64, at para. 38; Koroll v. Automodular, 2011 HRTO 774, at paras. 55-62; Ontario Nurses’ Association v. Orillia Soldiers Memorial Hospital, 1999 CanLII 3687 (ON CA).

28As the Supreme Court of Canada stated in Hydro-Quebec v. Syndicat des employees de techniques professionelles et de bureau d’Hydro-Quebec, 2008 SCC 43, at paras. 14-16:

… the goal of accommodation is to ensure that an employee who is able to work can do so. In practice, this means that the employer must accommodate the employee in a way that, while not causing the employer undue hardship, will ensure that the employee can work. The purpose of the duty to accommodate is to ensure that persons who are otherwise fit to work are not unfairly excluded where working conditions can be adjusted without undue hardship.

However, the purpose of the duty to accommodate is not to completely alter the essence of the contract of employment, that is, the employee’s duty to perform work in exchange for remuneration…

The employer does not have a duty to change working conditions in a fundamental way, but does have a duty, if it can do so without undue hardship, to arrange the employee’s workplace or duties to enable the employee to do his or her work.

29According to the applicant, the duty to accommodate may require an employer to refrain from collecting an overpayment from an employee, in circumstances where attempts to collect have a negative impact on the employee, by reason of his/her disability. However, the applicant’s argument in this regard cannot prevail because it flies in the face of the well-established principle that the duty to accommodate does not require pay for no work in exchange.

30I recognize that the applicant in this case is not attempting to argue that she was entitled to receive pay from the respondent for no work in exchange. She does, however, argue that she was entitled to keep pay that she received for no work in exchange (through no fault of her own), until she recovered sufficiently to return to work. In my view, this is a distinction without a difference. Applying the reasoning in cases such as Orillia Soldiers and Hydro-Quebec to the facts of the case at hand, I find that the duty to accommodate does not require an employer to forego attempts to collect wages paid to an employee in error any more than it requires them to pay such wages in the first place.

31For these reasons, I find the applicant has no reasonable prospect of success on this aspect of the Application and it is dismissed.

32I also wish to address the applicant’s suggestion that the respondent infringed her rights under the Code by not diligently investigating the applicant’s concerns that she was being overpaid when she brought them forward in or around May 2010, after the applicant had gone off work again on disability leave.

33It is not entirely clear to me that the applicant is pursuing this allegation, because she stated at one point during the summary hearing that there was no infringement of her rights under the Code prior to December 2010. In any event, to the extent that the applicant does seek to pursue this argument, I find that this aspect of the Application has no reasonable prospect of success.

34The applicant submits that the respondent’s failure to investigate her concerns that she was being overpaid in a more diligent and expeditious fashion was extremely stressful for the applicant and exacerbated her mental disability. However, as I explained during the summary hearing, the Tribunal has no jurisdiction to address treatment on the basis that it has caused or exacerbated a disability. The Tribunal only has jurisdiction to address discriminatory treatment, i.e. differential and disadvantageous treatment experienced by the applicant because of her disability. In this case, even if the applicant can show that the respondent’s actions exacerbated her disability, in my view, she has no reasonable prospect of establishing that the respondent’s actions were discriminatory.

35The applicant suggests that, by failing to investigate her overpayment concerns in a more diligent and expeditious manner, the respondent breached its duty to accommodate the applicant’s disability-related needs, and thereby discriminated against her. I cannot agree. As noted above, the duty to accommodate requires an employer to adjust working conditions, up to the point of undue hardship, so as to allow an employee who is able to work to do so. It does not, in my view, have any application to the circumstances identified here, which do not relate to the applicant’s working conditions so much as her indebtedness to the respondent. The applicant in this case is not arguing that the respondent could have somehow modified her workplace or duties so as to allow the applicant to perform the essential duties of her job. Rather, the applicant is attempting to hold the respondent liable for causing her "unnecessary" stress and contributing to her disability. As noted above, the Tribunal does not have jurisdiction to deal with this claim.

36Quite apart from this, I also agree with the respondent that the applicant has no reasonable prospect of succeeding in this aspect of her Application, because, during the summary hearing, she was unable to point to any evidence by which she might prove that the respondent knew that the applicant had a particular disability-related need for it to clarify the overpayment situation in a more expeditious manner. Even if the duty to accommodate applied in these circumstances, the respondent could not be found liable for failing to accommodate a disability-related need that it did not know existed.

37For these reasons, I find that the applicant has no reasonable prospect of success in proving that the respondent discriminated against her on the basis of disability. This aspect of the Application is dismissed accordingly.

Reprisal

38The applicant also alleges that the respondent reprised against her contrary to the Code when it sent her overpayment debt to a collection agency.

39In order to succeed in a claim of reprisal under s. 8 of the Code, the applicant would have to establish that the respondent did something with the intention of retaliating against her for claiming or enforcing her rights under the Code; instituting or participating in proceedings under the Code; or refusing to infringe another person’s rights under the Code: Noble v. York University, 2010 HRTO 878.

40In this case, the applicant contends that the respondent reprised against her for claiming or enforcing her rights under the Code. In my view, however, the applicant has no reasonable prospect of proving this, because the applicant has no reasonable prospect of establishing that she did claim or enforce her rights under the Code.

41The applicant submits that she claimed or enforced her rights under the Code in her letter to Ms. Champagne dated April 23, 2010. (Although, as noted above, it appears that the applicant’s “April 23, 2010” letter may have actually been written later than April 23, 2010, this does not materially affect the reprisal analysis.) In that letter, however, the applicant did not assert that the respondent’s actions were discriminatory or contrary to human rights legislation. Rather, the applicant took the position that, under “disability law”, she did not have to pay her debt to the respondent while she continued to be off work on disability leave.

42Although attempting to claim or enforce rights under “disability law” might, in other circumstances, be sufficient to trigger the protection of s.8 of the Code, I fail to see how the assertion in the applicant’s letter that she was exempt from repaying her debt to the respondent while on disability leave can be construed as the applicant having claimed or enforced her rights under the Code. As the applicant herself acknowledged during the summary hearing, there is no right under the Code to be exempt from repaying debts because a person is on disability leave.

43Nor was the applicant even attempting to claim or enforce her rights under the Code when she wrote to Ms. Champagne. During the summary hearing, the applicant candidly acknowledged that she did not mention human rights in her letter to Ms. Champagne, because, although she had been advised that she had a legal right not to pay her debt while on disability leave, she had not been advised and “did not know” that such (alleged) right arose pursuant to human rights legislation.

44Even if the applicant could establish that she was claiming or enforcing her rights under the Code in her letter to Ms. Champagne, her reprisal claim would still fail. This is because the applicant has no reasonable prospect of proving that the respondent’s decision to send the applicant’s debt to collections was related to the statements in the applicant’s letter to Ms. Champagne.

45In support of her argument that the respondent reprised against her, the applicant points to the fact that the respondent sent her debt to a collection agency a mere five days after she wrote to Ms. Champagne. However, the mere fact that the respondent sent the applicant’s debt to collections after the applicant wrote to Ms. Champagne is insufficient to establish that the respondent sent the applicant’s debt to collections because of the statements in the applicant’s letter, which is what would be required to establish that the respondent’s actions were retaliatory.

46Nor do the documents submitted by the applicant support her contention that the respondent was reacting to statements in the applicant’s letter to Ms. Champagne when it sent her debt to collections. On the contrary, based on the documents provided, it appears that when the respondent sent the applicant’s debt to collections, it was merely staying on a course that it had set well before the applicant sent her letter to Ms. Champagne.

47In particular, I note that the respondent wrote to the applicant as early as February 2, 2011, stating that it would send the applicant’s debt to collections if the applicant missed any of the monthly payments that she had agreed to. When the applicant missed her first two monthly payments, for February and March 2011, the respondent sent the applicant a further letter, dated April 18, 2011, restating its intention to send the applicant’s overpayment to a collection agency unless the applicant made arrangements to pay the monies owing. When the applicant failed to make a third monthly payment for April 2011, the respondent referred the applicant’s debt to a collection agency, as it had been stating since February 2011 it would do.

48Against this backdrop, I find that the applicant has no reasonable prospect of proving that the respondent sent her debt to a collection agency because of the statements the applicant made in her letter dated April 23, 2011.

49During the summary hearing, the applicant also indicated that she proposes to prove that the respondent reprised against her by calling evidence to establish that the applicant is the only employee whose overpayment has ever been referred to a collection agency by the respondent. I agree with the respondent, however, that this fact, if true, and even when considered alongside the applicant’s other allegations, does not amount to a sufficient basis upon which the Tribunal might conclude that the respondent sent the applicant’s debt to collections because she claimed or enforced her rights under the Code.

50For all of the above reasons, I find that the applicant has no reasonable prospect of proving that the respondent reprised against her contrary to s. 8 of the Code. The applicant’s reprisal claim is dismissed accordingly.

ORDER

51For the reasons outlined above, I find that the Application has no reasonable prospect of success. It is dismissed accordingly.