Brouillette v. Northern Lights Canada, 2012 HRTO 159

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Josee Brouillette Applicant

• and -

674725 Ontario Ltd. operating as Northern Lights Canada Respondent

INTERIM decision

Adjudicator: Douglas Sanderson Date: January 20, 2012 Citation: 2012 HRTO 159 Indexed as: Brouillette v. Northern Lights Canada

APPEARANCES

Josee Brouillette, Applicant ) Melynda Layton, Counsel 674725 Ontario Ltd. operating as ) Northern Lights Canada, ) Gita Anand, Counsel Wendy Legere, Joanne Wells, ) Christine Walker and Julie Blake )

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 in employment because of disability, family status, marital status, association with a person identified by a prohibited ground of discrimination and reprisal. In a Case Assessment Direction dated July 13, 2011, the Tribunal, on its own initiative, ordered a summary hearing in this matter 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 Tribunal held the Summary Hearing on October 3, 2011 by teleconference.

Decision

2For the reasons which follow I dismiss the Application in part.

Background

3The applicant began working for the corporate respondent, Northern Lights Canada (“NLC”) in September 2008 as an Employment Specialist / Case Manager at the respondent’s Ottawa West Employment Assessment Centre. On or about June 5, 2009, the applicant also assumed duties as a Corporate Trainer, which allowed her to work at home one day per week. The applicant alleges that shortly afterward, from approximately July 9, 2009, she began to experience a variety of workplace issues that had negative consequences for her. These issues form the factual allegations set out in the Application, which are summarized as follows:

“Whistle Blowing”

4The applicant attended a monthly meeting for Corporate Trainers in Oshawa on July 10, 2009. During a round table discussion, the applicant disclosed her view that the work environment for the Ottawa-West Team was becoming toxic because workload issues were causing conflict regarding time and resources. The Corporate Trainer Team Lead advised the applicant to discuss these issues with the CEO, Wendy Legere, and human resources. The applicant met with Ms. Legere and Julie Blake from human resources. Ms. Legere promised to address the issues the applicant raised and both she and Ms. Blake assured her that she would not be punished for coming forward with her concerns. Contrary to this promise, Ms. Legere failed to protect the applicant from adverse treatment at the hands of Ms. Blake, Joanne Wells, the Program Coordinator, and Christine Walker, the Team Lead. The applicant alleges Ms. Wells and Ms. Walker retaliated against her and treated her differently. In particular, the applicant alleges the manner in which management dealt with a workplace incident involving the applicant and co-worker (described below) was retaliation for her whistle blowing regarding an unhealthy work environment.

Failure to Accommodate August 2009

5In July 2009, the applicant suffered a hip flexor injury. The applicant also suffers from fibromyalgia and the combination of her condition and her injury caused her to seek accommodation. The applicant provided an Employee Medical Report completed by her doctor to support her request for accommodation and to assist management in addressing her needs. In a meeting on August 5, 2009 held to discuss her accommodation request, the applicant found Ms. Walker and Ms. Wells did not treat her in a collaborative manner and dictated to her how she would be accommodated. Initially, they informed her that she would work reduced hours, as requested, but would no longer perform the Training Coordinator role because the position is for full time employees. Ms. Wells asked her to “try to not be sick too long as it puts more pressure on the team.” The applicant met with Ms. Blake to express her concern that removing her form the Corporate Training position – which allowed her to work from home one day per week – was inappropriate. Ms. Blake therefore convened a second meeting to re-visit the proposed accommodations. The meeting was attended by Ms. Legere, Ms. Well, Ms. Walker, Ms. Blake and several other pertinent personnel. The result of the meeting was that the applicant continued in the Corporate Training position and Ms. Walker would prepare a Return to Work Plan setting out her expectations of the applicant while working reduced hours.

6Ms. Walker did not prepare a Return to Work Plan; therefore, the applicant asked her for clarification. According to an e-mail message reproduced in the text of the Application, Ms. Walker described the duties she expected the applicant to perform, including eventually seeing three clients during her five hour shift. The applicant alleges that the expectation for her colleagues working full eight hour shifts was also to see three clients. Further, Ms. Gauthier, who was hired to job share with the applicant until she returned to full time hours, was also expected to see three clients per shift, resulting in a doubling of the case load for her position. The applicant would eventually take on this entire caseload when she returned to full time work. Because of the workload, the applicant alleges that she worked beyond the limits set to accommodate her. Consequently, the applicant alleged Ms. Well and Ms. Walker were treating her differently and causing her stress, which they knew made her illness worse.

Ergonomic Assessment

7The applicant’s physiotherapist recommended that she have an ergonomic assessment performed at work to prevent further injury. The applicant therefore requested an ergonomic assessment and was met with confusion regarding the process for organizing this service. Ms. Wells was unsure if the service was provided in-house. Ms. Blake was also unsure of the process and referred the applicant back to Ms. Wells, who directed the applicant to Acclaim Ability Management, an external agency, to get a quote. The applicant scheduled the assessment on September 28, 2009 and the assessment occurred on October 5, 2009. After the assessment was complete, the applicant states that she asked Ms. Wells if an ergonomic assessment could also be performed at her home, since she worked there one day per week. Ms. Wells allegedly responded to the effect that the applicant would be responsible for that. The physiotherapist drafted a detailed report setting out several recommendations to improve the applicant’s work station.

8The applicant alleges that NLC provides professional services to clients, including ergonomic assessments. The applicant asserts that once the respondent became aware of her disability it should have offered her these services to her, which would have benefited her and prevented much of the pain she was suffering as a result of her office set up. The applicant alleges that the failure to offer her these services was punishment because she “blew the whistle” on Ms. Wells and Ms. Walker regarding the team’s health issues caused by overwork. Further, the applicant alleges that the organization did not treat its employees with the same level of service as their clients. The applicant alleges that Ms. Wells and Ms. Walker did not take her disability seriously and intentionally exacerbated her stress.

Request to Work at Home

9The applicant had been hospitalized in Toronto on November 11, 2009 when attending the organization’s Annual General Meeting as a result of a major fibromyalgia episode. The episode caused her to lose mobility in her legs and she required a wheelchair. Consequently, she requested to work from home during the week of November 16, 2009 in a telephone discussion with Ms. Walker. Ms. Walker allegedly declined the request because of the requirement to meet clients. On December 1, 2009, Ms. Wells announced during a team meeting that employees who contracted the H1N1 virus would be granted permission to work from home. The applicant asked if employees could work from home for reasons other than H1N1 and was informed that the strategy was only for those who had H1N1. The following day, the applicant learned that a co-worker, Allison Boyd, was permitted to work from home because her son was ill, not because she had contracted the H1N1 flu. The applicant alleges that this differential treatment was discrimination because of disability and family status and was also a reprisal for raising health and safety issues to the CEO.

Workplace Incident on December 2, 2009 and Investigation

10On Wednesday, December 2, 2009, the applicant alleges that Ms. Boyd subjected her to a verbal attack in her office during work hours. Ms. Wells responded to the incident by requiring the applicant to attend a meeting against her will and “verbally and environmentally” attacking her. Ms. Wells allegedly ignored the fact that the applicant had been attacked by a colleague and was supposed to be leaving work as she was moving to a new residence that day. The applicant states that Ms. Wells’ main concern was not to deal with the incident, but to question the applicant for going to head office regarding her accommodation request. The applicant informed Ms. Wells that she had been verbally attacked and did not feel safe, which was affecting her health as fibromyalgia symptoms are exacerbated by stress. Nonetheless, Ms. Wells suggested a meeting with Ms. Boyd, contrary to the organization’s Workplace Harassment Policy. The applicant alleges Ms. Wells made this suggestion to punish, intimidate, harass and humiliate her in front of Ms. Boyd.

11The applicant alleges that Ms. Wells and NLC did not investigate the incident properly. The applicant returned to the office following her move on December 7, 2009, and found that nothing had been done to investigate the incident involving Ms. Boyd. The applicant therefore wrote an e-mail message to Ms. Wells, dated Thursday, December 10, 2009, to determine what steps would be taken to prevent a similar incident in the future. She also expressed, amongst other things, how she felt attacked and threatened in her workplace and no longer felt safe at work. Ms. Wells responded by e-mail the following day, to the effect that she wanted to meet the applicant in person, but could not meet until Thursday, December 17th. Following receipt of this message, the applicant and Deirdre Pinto went to Ms. Wells’ office to discuss the situation.

12On December 17, 2009, the applicant, accompanied by Ms. Pinto, met with Ms. Wells, but the applicant was not satisfied with the outcome of the meeting. Ms. Wells explained that she had not been aware the applicant was alone with Ms. Boyd until the applicant and Ms. Pinto met with her on December 11th. Ms. Wells also acknowledged she did not know the procedure for completing a formal incident report and no investigation had been initiated. The applicant felt Ms. Wells was not taking her seriously or handling the situation objectively.

13Not satisfied with Ms. Wells’ response, the applicant sent an e-mail message the next day, Friday, December 18th, to Ms. Walker with copies to Ms. Blake, Ms. Legere and Ms. Pinto. The applicant states that she described her impressions of the meeting with Ms. Wells and that she continued to feel that no one was taking her health and safety issue seriously. She requested direction regarding the procedure to file a formal complaint against Ms. Boyd and Ms. Wells both of whom had verbally attacked her at work. Later that day, the applicant spoke with Ms. Blake and Adrianne Haight from human resources regarding her concerns. She explained that she wanted an investigation into the incident with Ms. Boyd, but also wanted to know how management planned to keep her safe in the meantime. In that vein, the applicant requested that Ms. Boyd be required to work at home or at the Ottawa East office until the matter was resolved. Ms. Blake replied to the effect that it would not be fair to remove Ms. Boyd from the workplace without an investigation. The options presented to the applicant were that she would work from home or at the Ottawa East office. The applicant was concerned by these options because she did not have the proper equipment at home for her work and the commute to the Ottawa East office would be very difficult in her condition and that office did not have her ergonomic tools. Neither Ms. Blake nor Ms. Haight indicated an ergonomic assessment would be performed at either location. Nonetheless, the applicant reluctantly agreed to work at home pending resolution of the matter and contacted Ms. Wells to make the necessary arrangements, despite her misgivings about Ms. Wells’ management of her concerns.

14On Sunday, December 20th, Ms. Blake followed up the meeting with an e-mail messaged confirming this discussion. The salient points of the message are as follows:

• Ms. Blake suggested working at the Ottawa East office, but the applicant preferred to work from home;
• The applicant would work from home on December 21, 22 and 24, 2009 (December 23rd being a regular day off), would be on vacation the following week and would return to the office on January 4, 2010;
• On January 4, 2010, a meeting would be convened, apparently with Ms. Boyd present, to address the applicant’s safety concerns.

15The applicant nonetheless decided to attend the Ottawa West office the next day, December 21, 2009, rather than work at home on the basis that she had not been instructed not to come to the office and could trade workstations with Ms. Pinto, which would largely address her safety concerns. She arrived at 7:25 a.m. at which time she read Ms. Blake’s message from the previous day. At about 7:40 a.m., she contacted security because she still felt unsafe at work and wondered what might have happened if she had called security on December 2, 2009. She spoke to the head of security, Mr. B., described the incident with Ms. Boyd and inquired regarding how the situation would have been dealt with had she called security that day. At about 8:00 a.m. the applicant contacted human resources to confirm that it was acceptable for her to be in the office and to use Ms. Pinto’s workspace. Ms. Blake was on vacation; therefore, the applicant spoke to Ms. Haight who informed her that she was only authorized to the deal with the arrangements required to have the applicant work at home. Mr. B. arrived in the office at approximately 8:40 a.m. and he stated that the incident could be a legal matter, possibly amounting to forcible confinement and suggested the applicant contact the police. He further stated that Ms. Boyd’s behaviour was unacceptable and that he was surprised by NLC’s treatment of the matter.

16Ms. Wells arrived in the office at 10 a.m. Ms. Wells informed the applicant that she must speak to Ms. Blake as soon as possible and provide her with a list of her requirements. The applicant spoke to Ms. Blake at 11:00 a.m. who, it would seem, was not at all happy to learn the applicant was in the office, contrary to their agreement reached on December 18th. The applicant felt intimidated by Ms. Blake and attributed the following statement to her:

My ass is on the line. If you are going to stay at work then you have to put in writing that you feel safe. Why did you change your mind? You are going to have a really bad fibromyalgia episode. It will be really bad! It will be the worst episode you have had and you will not be able to go on your trip. You need to leave. That is the only way I can protect you.

The applicant informed Ms. Blake of the security guard’s opinion. Ms. Blake advised the applicant that she would attend the meeting on January 4, 2010 with Ms. Walker, Ms. Boyd and the applicant. Ms. Blake assured the applicant that she would take care of the matter and directed her to go home. The applicant agreed that she would go home after attending to some matters. Ms. Blake did not tell her to go home immediately and in any event she was in no condition to drive herself home after their conversation, which was stressful and upset her. The applicant therefore waited until Ms. Pinto was available to take her home.

17At 11:50 a.m., the applicant was about to leave when Mr. B arrived with his manager to discuss the incident. They stated that it was a serious matter and recommended that she contact the police and the Ministry of Labour. After the security guards departed, Ms. Wells asked the applicant why they were there and the applicant gave an explanation. Ms. Wells then called Ms. Blake from her office, but returned shortly and passed the phone to the applicant. Ms. Blake asked the applicant why she remained in the office, why security was there and threatened to have mall security remove the applicant if she did not depart within five minutes. The applicant stated she would leave within three minutes. The applicant left the office.

18On December 22, 2009, Ms. Blake sent an e-mail message to the applicant regarding her behaviour the previous day. The applicant first read the message on December 23rd. The essence of the message is that Ms. Blake did not understand why the applicant decided to come to work, contrary to their agreement on December 18th, given that she felt unsafe at work or why she decided to involve mall security. Ms. Blake directed the applicant to explain her actions in writing by December 28, 2009. The applicant responded by e-mail on December 24th to the effect that the stress of the situation was seriously affecting her health and her physiotherapist advised her to relax and avoid stress. Accordingly, the applicant was not able to provide her explanation immediately, but would do so in the New Year. She explained that she no longer believed NLC had her best interests and health and safety at heart. Consequently, she had contacted the police, the Ministry of Labour, the Advocacy Resource Centre for the Handicapped and the Human Rights Tribunal of Ontario. The applicant would consult with her physician and would advise Ms. Blake regarding whether her health would permit her to proceed with the investigation process.

19The applicant’s health did not allow her to attend work on January 4, 2010 or since and she remains on leave of absence.

Other Allegations

20The Application contains a number of other allegations, summarized as follows:

• In late April or early May 2009, Ms. Walker wanted to relieve the applicant of her Corporate Training duties. The applicant resisted this initiative and continued to perform these duties until November 2009;
• Ms. Walker forgot to complete the paperwork needed to register the applicant for group benefits, which delayed eligibility for a month;
• The applicant was without a “buddy” (a co-worker who will cover for an absent employee) for a month;
• Ms. Walker violated the applicant’s privacy by leaving a copy of her Employee Medical Report, containing sensitive health information, on the photocopier;
• Management did not respect the accommodations in place for a pregnant co-worker;
• The employee who assumed the health and safety representative role in January 2010 did not receive any formal training;
• Ms. Legere did not ensure the Ottawa-West Team received the Canadian Association of Rehabilitation Professionals Inc. training for the Code of Ethics;
• Ms. Legere failed to provide Health and Safety training for employees at the Ottawa-West location;
• The applicant did not receive a card or small gift from the Ottawa-West Team or Head Office when she was hospitalized in November 2009;
• The applicant had to seek the assistance of an Ontario Employment Support Worker to advocate for her and communicate with NLC on her behalf:
• The applicant was not informed of changes to government funded employment services at the same time as active employees;
• The applicant was not informed of the hiring process following the government mandated changes;
• NLC terminated Ms. Pinto’s employment on January 4, 2010. Ms. Pinto and the applicant were in a relationship at the time; therefore, the applicant believe the dismissal served to punish the applicant and deter other employees from challenging the employer;
• On January 4, 2010, NLC revoked the applicant’s access to work e-mail and continued to communicate through her personal e-mail address, cellular phone and home phone. NLC did not keep her updated regarding developments at work;
• When the applicant came to the office to retrieve her personal belonging, she found her office had been ransacked, some of her belonging scattered, some placed in a box and some in another office. Pages had been ripped out of work books; and,
• The applicant was not informed of the closure of the Ottawa-West Office.

Summary Hearings

21The summary hearing process is described in Rule 19A of the Tribunal’s Rules of Procedure. The issue in a summary hearing is whether the 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.

22In Dabic v. Windsor Police Service, 2010 HRTO 1994, at paras. 8-10, the Tribunal made the following observations on the type of inquiry that may be involved in a summary hearing:

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.

In considering what evidence is reasonably available to the applicant, the Tribunal must be attentive to the fact that in some cases of alleged discrimination, information about the reasons for the actions taken by a respondent are within the sole knowledge of the respondent. Evidence about the reasons for actions taken by a respondent may sometimes come through the disclosure process and through cross-examination of the people involved. The Tribunal must consider whether there is a reasonable prospect that such evidence may lead to a finding of discrimination. However, when there is no reasonable prospect that any such evidence could allow the applicant to prove his or her case on a balance of probabilities, the application must be dismissed following the summary hearing.

The Parties’ Submissions

23At the Summary Hearing, the applicant limited her submissions to the allegations forming the core of her complaint against the respondent.

Request for Accommodation July and August 2009

24The applicant asserted that the respondent became aware she suffers from fibromyalgia in April 2009 when she informed Jody Watts, her former supervisor, of her condition to explain her level of absenteeism. Consistent with the allegations set out in the Application, the applicant submitted that she suffered a hip flexor injury in July 2009, which, in conjunction with her condition, reduced her mobility and led her to seek accommodation. Her doctor provided medical support for her request and suggested she reduce her hours of work. The respondent responded to her accommodation request by initially removing her from the Corporate Trainer position and by reducing her hours of work, but requiring the same amount of work as full time employees. Accordingly, the applicant submits the respondent failed to meet its duty to accommodate her.

25The respondent submitted that it treated the applicant’s request for accommodation appropriately and provided appropriate accommodation. In this respect, the respondent’s acknowledged that management initially decided to remove the Corporate Trainer responsibilities from the applicant, since they included travel that did not seem consistent with the applicant’s restrictions. The respondent denied the applicant was overworked when her hours of work were reduced.

Ergonomic Assessment

26The applicant’s submissions regarding her request for an ergonomic assessment were again consistent with the allegations found in the Application. The applicant added that between September 2, 2009, when she first requested an assessment, and September 28, 2009, when the assessment was ordered, she felt as if Ms. Walker and Ms. Blake sent her on a “wild goose chase”, which caused an unreasonable delay. The equipment ordered pursuant to the recommendation made in the assessment arrived in late October and early November 2009, although some equipment was not compatible and had to be returned. The applicant submitted that NLC does ergonomic assessments for clients and should have been able to better assist her when she requested such an assessment. The applicant further submitted that the respondent’s personnel purposely “dragged their feet” regarding her ergonomic assessment to make her life more difficult.

27The respondent noted the ergonomic assessment was ordered on September 28, 2009 and completed on October 5, 2009 and the respondent received an invoice for the equipment required by the assessment on October 22, 2009. At that time, ergonomic assessments were not a service provided by NLC. Accordingly, the respondent submitted that the ergonomic assessment was completed with minimal delay and that there is no evidence the respondent purposely delayed the assessment or implementing the recommendations arising out of it.

The Annual General Meeting and the Request to Work from Home

28The Annual General Meeting (“AGM”) was held in Toronto on or about November 11, 2009. The applicant stated that her condition had not improved and was concerned that the drive from Ottawa would exacerbate her symptoms, as her doctor had advised against sitting for prolonged periods. The applicant noted that her doctor stated this restriction in the medical report provided to support her accommodation request earlier that summer. Consequently, the applicant asked Ms. Walker if attendance at the AGM was mandatory and explained that she continued to struggle with mobility. Ms. Walker responded to the effect that they could rent a van and take breaks along the way to assist the applicant. The applicant attended the AGM and endured the five hour drive. Another employee who was pregnant was permitted not to attend the event. The applicant was not advised that she could be excused from the AGM if she presented a doctor’s note supporting her request. In the event, the applicant experienced a serious fibromyalgia attack on November 11, 2009 and had to be taken to hospital by ambulance.

29The applicant remained in Toronto until November 12, 2009 and returned to Ottawa on November 13, 2009. On November 16, 2009, the applicant called Ms. Walker to inquire if she could work from home because she was physically unable to attend at work. She explained that she was immobile and taking pain medication and was concerned that the stress at work would make her fibromyalgia worse. Ms. Walker denied her request because the applicant’s position required her to meet with clients, which she could not do from home. The applicant remained off of work until November 23, 2009. Shortly after she returned to work, management announced a strategy regarding the H1N1 flu, which included allowing employees suffering from H1N1 who may have been exposed to H1N1 to work from home. The applicant questioned this aspect of the strategy as it appeared to her to be inconsistent to accommodate employees with H1N1, but not those with mobility issues. Ms. Boyd was allowed to work from home because her child was ill, pursuant to this strategy. The applicant submitted the respondent failed to accommodate her by refusing her requests not to attend the AGM and to work from home after returning from Toronto. The applicant further submitted that the differential treatment she experienced relative to a pregnant employee and Ms. Boyd, a parent, is evidence of discrimination because of disability, family status and marital status.

30The respondent acknowledged that employees were encouraged to attend the AGM and noted that the applicant did not provide a medical note indicating that she should not attend. The respondent tried to accommodate the applicant’s needs by providing a van and paid for her accommodation and travel back to Ottawa after she was hospitalized. The respondent noted that accommodation is based on individual circumstances and does not require identical treatment. The respondent explained that Ms. Boyd’s son had been in the hospital with a high temperature and was tested for H1N1. Ms. Boyd had no sick leave remaining to her and therefore requested to work from home while her son recovered. The respondent approved her request.

Incident with Ms. Boyd

31After the H1N1 strategy was announced, the applicant states that she and some co-workers continued to discuss the strategy in the applicant’s work area. The applicant continued to experience mobility issues and was using crutches at the time. The applicant was critical of the apparent inconsistency with the treatment of employees who contract H1N1 and employees with other ailments, such as herself. Ms. Boyd came into the applicant’s work area after the other co-workers departed and confronted the applicant regarding the discussion. According to the applicant, Ms. Boyd was upset with the applicant because she believed the applicant was trying to interfere with her accommodation to work at home. The applicant tried to explain that she was not concerned with Ms. Boyd’s accommodation, but with management’s apparent inconsistency in granting accommodation. Ms. Boyd would not listen to the applicant and became increasingly agitated, “towered over her”, and prevented the applicant from leaving the workspace. Eventually, Ms. Boyd “stormed off” and stated that she “will take care of this”. The applicant submitted that, but for her condition, Ms. Boyd would not have subjected her to this verbal attack, as the applicant characterized the incident.

32The respondent presented what might be described as the other side of the story. The respondent acknowledged that an unpleasant exchange occurred between the applicant and Ms. Boyd, but submitted that the event was better described as “workplace conflict” rather than a “verbal attack”, as, in their view, there was no evidence of violence or bullying. The respondent also submitted that the applicant was no less confrontational than Ms. Boyd, which led Ms. Boyd to seek Ms. Wells’ assistance. Regardless of the characterization of the incident, the respondent submitted that there is no evidence that Ms. Boyd targeted the applicant because of her fibromyalgia and, although apparently unpleasant, nothing in the interaction with Ms. Boyd was discriminatory.

Investigation Mismanaged

33The applicant’s submissions regarding the aftermath of the incident with Ms. Boyd were consistent with the facts set out in the Applicant. In essence, the applicant stated that the respondent did not take the matter seriously and mismanaged the situation. Management did not follow its own policy and took no action until prompted by the applicant and some of the action they finally took, i.e., to require the applicant to work from home rather than re-locate Ms. Boyd, served to isolate and punish her. The applicant emphasized that working at home meant she would not have the benefit of her ergonomic aides. The applicant clarified that after receiving Ms. Wells’ e-mail on December 11, 2009 suggesting a meeting on December 17th she and Ms. Pinto visited Ms. Wells in her office. They discussed the applicant’s concerns and agreed on a plan (proposed by the applicant) for the next week until the applicant and Ms. Wells could have a more comprehensive meeting on December 17th. The applicant submitted Ms. Blake’s statement to the effect that the applicant was “going to have a really bad fibromyalgia episode” during her first conversation with the applicant on December 21, 2009 was a threat to cause the applicant to have a fibromyalgia attack. Overall, the applicant submitted that the respondent’s mismanagement of the situation was a reprisal because she sought to enforce her human rights and, had circumvented local management regarding her accommodation requests.

34The respondent stated that it did attempt to investigate the applicant’s allegations of workplace violence, but were thwarted by the applicant. They note that Ms. Wells attempted to discuss the incident with the applicant shortly after it occurred on December 2, 2009, but the applicant refused. The respondent also stated that management tried to convene a meeting on December 7, 2009 (the next day the applicant was in the office) with Ms. Wells, the applicant and Ms. Boyd to address the incident, but the applicant was unable to attend. When the applicant sought to have her concerns addressed, the respondent acted cooperatively with a view to ensuring she felt safe at work and to investigate the incident with Ms. Boyd. On December 18, 2009, the respondent and the applicant devised a plan to ensure the applicant’s safety and commence investigating the incident in the New Year. The applicant, however, did not follow the plan and Ms. Blakes’ comments about fibromyalgia were not a threat, but an expression of concern that the applicant’s behaviour was creating a situation that could cause her a fibromyalgia episode. The respondent submitted that the applicant’s criticism of how the respondent managed the incident with Ms. Boyd does not come within the ambit of the Code or the jurisdiction of the Tribunal. The respondent further submitted that there is no connection between the management of the conflict with Ms. Boyd and the applicant’s earlier requests for accommodation.

Analysis and FINDINGS

35On my reading of the Application, the issues described by the applicant vary both in their nature and gravity. Most of the allegations, however, disclosed no apparent link to prohibited grounds of discrimination.

36Employment has been recognized as “one of the most fundamental aspects in a person's life”. See Reference Re Public Service Employee Relations Act (Alta.), 1987 CanLII 88 (SCC), [1987] 1 SCR 313, at paragraph 91. Employment, like other worthwhile pursuits, nonetheless has its challenges. In addition to their work functions, employees must sometimes negotiate an obstacle course of issues that come with employment, particularly regarding working with and for other people. These issues range in gravity from perceived slights and rivalries to very serious matters such as health and safety, including workplace violence. Employees who have disabilities, like the applicant, face additional challenges and disability-related restrictions may exacerbate the workplace issues all employees face.

37However, the fact that an employee has a disability does not in itself render the wide variety of workplace issues and controversies an employee may face violations of the Code. The Tribunal has stated any number of times that it does not have the power to deal with allegations of general unfairness. Rather, an applicant must establish, on a balance of probabilities, a link between a respondent’s alleged actions and a prohibited ground of discrimination under the Code. In the relatively short period of time the applicant worked for NLC, the applicant compiled a long list of grievances against NLC, management and co-workers, which she included in her Application. Most of these allegations have no link to a prohibited ground of discrimination, as they are described in the Application. This is particularly true of the allegations described in paragraph 20, above, under “Other Allegations”. The applicant made no submissions and provided no particulars regarding these allegations at the Summary Hearing. Consequently, the applicant has provided no evidence that she has or has reasonably available to her that would bring these allegations within the jurisdiction of the Tribunal. The exception would be the allegation that management did not respect the accommodations in place for a pregnant co-worker. However, the Application is not on behalf of this co-worker; therefore, this allegation is also not properly before the Tribunal.

Accommodation Claims

38As the Tribunal noted in Baber v. York Region District School Board, 2011 HRTO 213, the duty to accommodate is not a free standing obligation under the Code. Rather, it arises only pursuant to sections 11, 17 or 24 of the Code where a person is disadvantaged because of a prohibited ground of discrimination. In other words, the duty to accommodate arises only where an applicant has been subject to direct or adverse effect discrimination. The applicant bears the onus of establishing a prima facie case of discrimination, which, if established, shifts the evidentiary burden to the respondent to show that it accommodated the applicant to the point of undue hardship.

39All parties to the accommodation process have obligations. An employee seeking accommodation, for example, is responsible for initiating the process by stating the need for accommodation and must act in a reasonable and cooperative manner. See for example, Central Okanagan School District No. 23 v. Renaud, 1992 CanLII 81 (SCC), [1992] 2 S.C.R. 970 at page 31. In Simpson v. Commissionaires (Great Lakes), 2009 HRTO 1362, the Tribunal described how the duty to accommodate is triggered at paragraph 35:

In order to trigger the duty to accommodate, it is sufficient that an employer be informed of the employee’s disability-related needs and effects of the condition and how those needs and effects interact with the workplace duties and environment. As such, an employee does not necessarily have to disclose a detailed diagnosis of the disability in order for an employer to respond to a request for accommodation. This is not to detract from the well-established principle that accommodation is a collaborative process and the applicant should endeavour to provide as much information as possible to facilitate the search for accommodation.

40Therefore, to establish the respondent was obliged to accommodate her, the applicant must provide evidence demonstrating that she identified her need for accommodation in relation to a requirement or factor that discriminated against her, directly or in effect, because of her disabilities.

41At this stage, it is not appropriate to make any findings with respect to the applicant’s allegations or the respondent’s defence. It is sufficient to say that the applicant has satisfied me that I cannot find there is no reasonable prospect of success for the allegations regarding the respondent’s duty to accommodate described in this paragraph. In July and August of 2009, the applicant’s health prevented her from meeting her obligation to work full time hours and she sought accommodation from her employer. The applicant alleges that management approached her request in an autocratic manner, initially made punitive changes to her work in the name of accommodation and accommodated her with a reduced work load in theory only. The applicant’s physiotherapist advised her that using a workstation without ergonomic modifications may be exacerbating her fibromyalgia; therefore, she asked for an ergonomic assessment of her workspace at work and home, where she worked one day a week. Management granted the request regarding her workstation in the office, but not for her workspace at home. The applicant cast the pursuit of her workplace ergonomic assessment in terms of a reprisal (see below) but she presented the denial of an assessment at her home as a failure to accommodate. The applicant alleges she informed Ms. Walker that travelling to the AGM could exacerbate her symptoms and asked to be exempt from attending. Instead, Ms. Walker rented a van with a view to taking breaks while en route. The applicant suffered a fibromyalgia attack while attending the AGM and was hospitalized. After returning to Ottawa, the applicant requested to work from home because she was not completely recovered. Ms. Walker denied the request because the applicant could not meet clients at home, where the applicant remained on sick leave. In each instance, the applicant alleges that she requested accommodation regarding work requirements that posed difficulties for her because of her disability and the respondent either denied the requests or provided inappropriate or inadequate accommodation. Thus, I am not prepared to find at this stage, based on the materials filed, that the applicant has no reasonable prospect of establishing a claim based on the duty to accommodate, which necessitates a response or explanation from the respondent.

Reprisal Claims

42Section 8 of the Code provides:

Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing.

The prohibition against reprisal is of course extremely important because it protects individuals from intimidation and retaliation that might deter them from claiming and enforcing their rights under the Code. A reprisal claim is distinct from allegations of discrimination because an applicant must establish the respondent intended to punish or retaliate against the applicant. The Tribunal set out the elements of a successful reprisal application in Noble v. York University, 2010 HRTO 878 at paragraphs 33 and 34, as follows:

[33] Thus, in a complaint or application alleging reprisal, the following elements must be established:

a. An action taken against, or threat made to, the complainant;

b. The alleged action or threat is related to the complainant having claimed, or attempted to enforce a right under the Code; and

c. An intention on the part of the respondent to retaliate for the claim or attempt to enforce the right.

[34] In addition, the following principles are relevant:

a. There is no strict requirement that the complainant has filed a complaint or application under the Code, and

b. There is no requirement that the Tribunal find the respondent did in fact violate the complainant’s substantive rights to be free from discrimination.

43The applicant submitted the respondent committed several acts of reprisal against her. She asserted the respondent purposely stalled her ergonomic assessment, initially took no action to investigate the incident with Ms. Boyd and then implemented a plan designed to punish her by isolating her and depriving her of her ergonomic aids. According to the applicant, Ms. Blake threatened to cause her to have a serious fibromyalgia attack because she did not follow Ms. Blake’s investigation plan.

44In my opinion, there is no reasonable prospect of success for any of these reprisal allegations. One weakness each of the allegations share is the divergence between the Application and the applicant’s submissions at the Summary Hearing. In the Application, the applicant attributed the respondent’s differential and retaliatory treatment to the fact that she “blew the whistle” regarding unhealthy working conditions in the Ottawa West Office. Retaliation for raising a health and safety concern is, of course, outside the Tribunal’s jurisdiction. At the Summary Hearing, the applicant sought to place the allegations within the Tribunal’s ambit by casting them as retaliation for pursuing accommodation of her disabilities.

45The applicant says that she finds it surprising that the respondent could initiate ergonomic assessments for clients, but not for employees. However, the applicant described no evidence that any of the management personnel involved had dealt with a request for an ergonomic assessment for an employee (or for a client for that matter). Similarly, the applicant gave no indication of how long it took to initiate other ergonomic assessments and implement recommendations arising from them. Thus, the applicant has not provided in either her submissions or her Application any basis to conclude that she would be able to establish that the respondent treated her differently or that the time elapsed from the date she requested the assessment to the implementation of the recommendations (about eight weeks) was inordinately long, other than her bald assertion. In the absence of the applicant pointing to evidence that she has or is reasonably available to her that other assessments were conducted and implemented more quickly, this does not appear to be a lengthy delay. More importantly, the applicant has pointed to no evidence that the respondent intentionally delayed or stalled the process. The applicant says she was sent on a wild goose chase. The only evidence on this point that the applicant has or which she has indicated is reasonably available to her are the e-mail messages between the applicant and Ms. Walker and Ms. Blake that are included with the Application. The messages do indicate that Ms. Walker and Ms. Blake were not sure of how to go about initiating the assessment, but also indicate that they were supportive of the applicant. Accordingly, if this part of the Application were to proceed to a merits hearing, the applicant has no reasonable prospect of proving, on a balance of probabilities, that the respondent intentionally delayed the ergonomic assessment.

46The applicant submitted that the respondent mismanaged the investigation of the confrontation with Ms. Boyd and did not take her concerns for her safety seriously. That may be, but such mismanagement will amount to a reprisal under the Code only if she can establish, on a balance of probabilities, that the respondent acted with the intent to retaliate against her because she sought to claim or enforce her human rights. I do not believe that if this part of the Application were to proceed to a merits hearing the applicant has a reasonable prospect of success in this regard. The series of events described by the applicant suggest that the respondent did not take immediate action to investigate the incident with Ms. Boyd, as the applicant asserts NLC policies required. It is also appears that the respondent did not consider the incident to be as a serious as she did, since it characterized the event as “workplace conflict”, while she considered it to be a “verbal assault”.

47However, the applicant’s account and e-mail messages included with the Application indicate that when she brought her concerns forward the respondent attempted to address them and offered solutions that the applicant found satisfactory, at least initially. The exception was Ms. Wells’ response on December 11, 2009 to the applicant’s message of the previous day. After receiving Ms. Wells’ response on December 11, 2009, the applicant immediately met with Ms. Wells and they were able to work out a plan that would allow the applicant to feel safe at work until a more comprehensive meeting could be arranged. On December 17, 2009, the applicant met with Ms. Wells who committed to beginning the investigation. Later on December 17th, the applicant sent a message to Ms. Wells thanking her for the meeting and expressing confidence in her, but also requesting additional measures be taken to ensure the applicant’s safety, particularly requiring Ms. Boyd to work off site until the matter was concluded. The following day, December 18th, the applicant wrote to Ms. Walker to describe the situation and express her view that Ms. Wells should not conduct the investigation. Ms. Blake contacted the applicant later that day and they devised a plan to address the applicant’s safety concerns (by having her work at home the next week) and to begin the investigation upon her return from vacation. There is nothing in any of these communications that indicates the respondent was unwilling to address the applicant’s concerns or intentionally blocked the investigation. The applicant’s objection to Ms. Wells was her apparently lack of concern for the applicant’s safety. Other than the applicant’s bare assertion, there is nothing to suggest retaliatory behaviour.

48The applicant submits that Ms. Blake’s decision to have her work from home for the week of December 21, 2009 was intended to punish her by isolating her and depriving her of the ergonomic aids available to her in the office. In the circumstances, either the applicant or Ms. Boyd would have to work off site the following week. Ms. Blake’s judgement was that it would not be fair to remove Ms. Boyd without an investigation. The applicant did not like the decision, but there is nothing obviously improper about it. The applicant states that she was concerned because she did not have ergonomic aids at home, but did not assert that she raised the issue with Ms. Blake. Ms. Blake was also instrumental in securing the applicant’s accommodations; therefore, the motive for retaliation the applicant suggests – unhappiness with having to accommodate her – has no connection to Ms. Blake. In my view, the applicant’s allegation of retaliation is no more than a bare assertion. She has presented no evidence that she has or that is reasonably available to her of retaliation.

49The applicant submitted that Ms. Blake threatened to cause the applicant to have a fibromyalgia attack during their first telephone conversation on December 21, 2009. Again, the statement attributed to Ms. Blake is as follows:

My ass is on the line. If you are going to stay at work then you have to put in writing that you feel safe. Why did you change your mind? You are going to have a really bad fibromyalgia episode. It will be really bad! It will be the worst episode you have had and you will not be able to go on your trip. You need to leave. That is the only way I can protect you.

The context of this alleged outburst was that the applicant had stated that she did not feel safe working in the office with Ms. Boyd and wanted the respondent to do something to protect her until the matter was investigated and resolved. Ms. Blake therefore arranged for the applicant to work at home for three days the next week before going on vacation and after her return from vacation the issue with Ms. Boyd would be addressed. This was not the arrangement the applicant wanted and she ultimately decided not to follow it – without notice to anyone. In the circumstances, I do not think it is surprising that Ms. Blake was not happy with the applicant’s actions and demanded an explanation, allegedly in quite strong terms. The words attributed to Ms. Blake do not actually say that she wanted the applicant to have a fibromyalgia attack or amount to a threat that she would cause the applicant to have one. This is the applicant’s interpretation of the alleged statement. However honestly held, the applicant’s interpretation is extreme and, in the context where Ms. Blake assisted the applicant obtain accommodation and worked to address the applicant’s safety concerns, there is no reasonable prospect that the applicant could succeed in proving Ms. Blake threatened her.

50Even assuming the alleged statement could be interpreted as a threat, it could not, in my view, amount to a reprisal under the Code. The work from home arrangement arose out of allegations of workplace violence and the applicant asserting her right to a safe workplace, which are health and safety matters outside the ambit of the Code. The threat attributed to Ms. Blake allegedly occurred because the applicant did not follow a plan to address her workplace safety and not because she sought to enforce her rights under the Code.

Allegations against Ms. Boyd

51The applicant asserts that Ms. Boyd targeted her on December 2, 2009 because of the applicant’s disability. The applicant pointed to no evidence that she had or which is reasonably available to her to support this assertion. In fact, the applicant stated that Ms. Boyd confronted her because she was concerned that the applicant was interfering with her accommodation to work from home because her child was ill. The applicant did not explain or point to any evidence that would indicate how her disability contributed to Ms. Boyd’s decision to confront her. Consequently, there is no reasonable prospect that the applicant can show a link between the interaction with Ms. Boyd on December 2, 2009 and the applicant’s disability.

Order

52The Application is dismissed with the exception of the applicant’s allegations that the respondent failed in its duty to accommodate the applicant regarding her hip flexor injury, her request for an ergonomic assessment for her home workspace, the decision to require her to attend the AGM and the denial of her request to work from home after returning from the AGM.

53The Application shall be returned to the Registrar’s Office for processing.