Diana Baylon v. University Health Network, 2012 HRTO 1783

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Diana Baylon Applicant

-and-

University Health Network Respondent

INTERIM DECISION

Adjudicator: Douglas Sanderson Date: September 19, 2012 Citation: 2012 HRTO 1783 Indexed as: Baylon v. University Health Network

WRITTEN SUBMISSIONS

Diana Baylon, Applicant Beth Walden, Counsel

University Health Network, Respondent Paula Rusak, Counsel

Dr. Ronald Dykeman, Respondent Elizabeth Grace, Counsel

Introduction

1This is an Application filed on September 14, 2011 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. The purpose of this Interim Decision is to address several Requests for Order During Proceedings filed by the parties.

Background

2In her Application, the applicant alleges that she suffered a workplace injury that imposed physical restrictions upon her and that the organizational respondent and several individual respondents failed to properly accommodate her. The applicant applied for benefits under the Workplace Safety and Insurance Act, 1997, S.O. c.16 Schedule A, regarding her injury and on March 21, 2012 the Tribunal sent the parties a Notice of Intent to Defer (NOID) consideration of the Application, pending the resolution of the proceedings before the Workplace Safety and Insurance Board (the “WSIB”), pursuant to Rule 14 of the Tribunal’s Rules of Procedure. In the NOID, the Tribunal directed the parties to make submissions regarding the issue of deferral and informed the parties that the respondents were not required to file Responses at that time.

3On April 20, 2012, the applicant filed a Request for Order During Proceedings (“RFOP”) seeking an extension of 40 days to the deadline for filing submissions pursuant to the NOID. The organizational respondent and several individual respondents consented to the request. The Tribunal extended the deadline to May 30, 2012.

4On June 5, 2012, the organizational respondent and several individual respondents filed a RFOP requesting that the Tribunal dismiss the Application for delay, pursuant to section 34(1) of the Code.

5On June 6, 2012, the Applicant filed a letter with the Tribunal in which the applicant advised that she had not yet filed an appeal in the matter before the WSIB and submitted that there was no reason to defer consideration of the Application.

6On June 21, the applicant filed a RFOP requesting extension of the deadline for responding to the respondents’ RFOP of June 5, 2012. On June 25 2012, the organizational respondent and several individual respondents filed a Response to a Request for an Order opposing the extension request. On June 27, counsel from the Human Rights Legal Support Centre, Ms. Walden, wrote to the Tribunal to explain that they had been retained by the applicant and would file a RFOP amending the Application. Counsel also requested an extension of the deadline to respond to the request to dismiss to July 6, 2012. The Tribunal granted the extension request.

7On July 3, 2012, the applicant filed an RFOP seeking to amend the Application. The proposed amendment clarified that the Application was based on alleged failures to accommodate the applicant’s disability, removed all of the individual respondents and removed compensation for certain expenses from her remedial request. The respondents consented to the request to amend.

8On July 5, 2012, the applicant filed a Response to a Request for an Order regarding the respondents’ RFOP of June 5, 2012 to dismiss the Application for delay.

Amendment

9Given the consent of the respondents, the applicant’s request to amend the Application is granted. It follows from this amendment that the individual respondents are removed from the Application and the style of cause amended accordingly.

Delay

Submissions

10In the RFOP of June 5, 2012, the respondents submitted that the allegations set out in the Application flow from an alleged workplace injury the applicant sustained on July 20, 2010. The applicant claimed benefits under the WSIA, but the WSIB denied the applicant’s claim. The applicant appealed this decision in August 2010 and again in July 2011. The respondents submitted that the applicant’s allegations of discrimination regarding her disability all flow from her injury in July 2010, which occurred more than one year before the applicant filed the Application. The respondents characterize these allegations as the continuing effects of her workplace injury and therefore do not amount to a series of incidents under section 34(1)(b). The respondents therefore submitted that the Application should be dismissed for delay.

11The applicant submitted that the Application is based upon the applicant’s accommodated work position and whether that position was an appropriate accommodation of her disability. The applicant submitted that the organizational respondent placed her in that position in January 2011, well within one year of the filing date of the Application.

Decision

12The applicant does not suggest in either the original or amended Application that the injury she sustained in July 2010 was itself a violation of the Code. The injury appears to have been the cause of her disabling condition, but is not an incident of alleged discrimination. In these circumstances, the concept of continuing effects does not apply. See: Mafinezam v. University of Toronto, 2010 HRTO 1495. Rather, the applicant states that the respondents failed to accommodate her disability-related restrictions, commencing in January 2011 when she was assigned a new position as an accommodation and the organization respondent allegedly ignored her concerns regarding the suitability of the accommodation offered. These incidents are alleged to have occurred within one year of the date on which the applicant filed the Application; therefore, there is no basis for dismissing the Application for delay.

Deferral

Submissions

13The organizational respondent and several of the individual respondents responded to the NOID in a letter dated April 17, 2012, in which they indicated that they were unsure of the status of the WSIB proceeding. The organizational respondent’s WSIB representative had been informed that the applicant had withdrawn or would withdraw her WSIB appeal, but it was not clear that she would not re-file the appeal at a later date. As noted above, the applicant has advised the Tribunal that she has not yet filed her WSIB appeal.

Decision

14The information before the Tribunal indicates that the applicant is not pursuing the WSIB proceeding, at this point. Accordingly, there is currently no reason to defer consideration of the Application. Should the applicant proceed with her WSIB she must inform the Tribunal and respondent immediately.

Order

15The Tribunal orders as follows:

The request to amend the Application is granted. The individual respondents are removed from the Application and the style of cause amended accordingly;

1. The request to dismiss the Application for delay is dismissed;

2. The Tribunal shall not defer the Application. The applicant shall immediately inform the Tribunal and the organizational respondent should she re-commence her WSIB proceeding; and,

3. The organizational respondent shall file a Response to the amended Application no later than 35 days after the date of this Interim Decision.