HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Jobina Thompson
Applicant
-and-
Co-opérative Régionale de Nipissing (Sud) Limited
Respondent
DECISION
Adjudicator: Geneviève Debané
Indexed as: Thompson v. Co-opérative Régionale de Nipissing (Sud) Limited
APPEARANCES
Jobina Thompson, Applicant
Self-represented
Co-opérative Régionale de Nipissing (Sud) Limited, Respondent
Michel R. Carré, Counsel
Introduction
1This is an Application filed on February 1, 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 ancestry and ethnic origin. The respondent has filed a Response denying the allegations of discrimination in the Application on the basis that language is not a prohibited ground of discrimination.
2The applicant worked in a grocery store owned and operated by the respondent. The terms and conditions of the applicant’s employment are governed by a collective agreement between the respondent and the Retail, Wholesale and Department Store Union, UFCW-Canada (the “Union”).
3On December 7, 2011, the Tribunal granted the respondent’s Request for a summary hearing.
4On December 15, 2011, the applicant delivered and filed a Request for an Order During Proceeding (the “Request to amend”) to amend her original Application to include that the respondents discriminated against her on the ground of disability.
5The respondent opposed the applicant’s Request to amend.
6On March 8, 2012, the conference call summary hearing was convened. I am satisfied that the Union had notice of the Application and chose not to participate at the summary hearing.
7Though the parties made detailed submissions on whether the Application as originally filed should be dismissed because it had no reasonable prospect of success, it became apparent during the hearing that the Tribunal had to address the applicant’s Request to amend as part of considering the issue of no reasonable prospect. The summary hearing was adjourned and the parties were given the opportunity to file written submissions on whether the new allegations raised in the Request to amend, even if granted, had no reasonable prospect of success.
8Both parties filed detailed submissions with the Tribunal and the summary hearing was reconvened on June 28, 2012 to allow the parties to make further oral submissions.
BACKGROUND
9The applicant filed the Application on February 1, 2011. Her narrative starts on November 26, 2010, when she recounts that she found out that the respondent would not let her work at the cash register at the store because she could not speak French. The respondent, who provides services to clients in the French language, had received a letter of complaint from 125 members because they could not communicate with the applicant when she worked at the cash register. The applicant was advised that she would no longer be permitted to work at the cash register.
10During the summary hearing, the applicant did not know exactly the number of hours she worked at the cash register, though she did indicate that it was usually to replace other employees who were sometimes on a break. The applicant was usually assigned a number of different duties, including working in the meat department. The applicant states that she felt humiliated and ashamed that she would now have “to hide out in the back/meat room and only speak to customers if absolutely necessary”. She believed that she was the victim of discrimination because she could not speak French. The applicant identifies her background as an Ontario Anglophone.
11The applicant left work that day with a pounding headache from the stress and tension of the day. On November 27, 2010, the applicant obtained the first of a series of doctor’s notes confirming that she could not work; and in fact she never returned to work. The Application alleges that she had been off work due to her “emotional and mental health”. Thereafter, the narrative in the Application is with respect to her discussions with her union about whether or not it was appropriate to file a grievance. No grievance was filed.
12In the Request to amend, the applicant alleges that the respondent refused to accommodate her disability which had resulted from a previous workplace injury. In the Request to amend, the applicant alleges discrimination only with respect to events that occurred in January 2011 and thereafter. The applicant alleged that she could not perform the work in the meat department because of her injury. The applicant alleges that there was a failure to accommodate her disability in discussions which allegedly occurred on January 15, 2011; two weeks prior to the filing of her Application.
13In further submissions filed on March 23, 2012, the applicant discusses a meeting that occurred on January 14, 2011, with the Union and the respondent that related to the complaint filed against her by the members. The applicant did not provide any details that she sought accommodation at this meeting or advised that she had any medical restrictions. The applicant states that the respondent inquired whether she would be returning to work after her doctor’s appointment on January 18, 2011; to which the applicant responded that she would let her know.
14She also alleges in the Request to amend that she was told by the respondent in a telephone message on April 7, 2011 that she could not return to work unless she was 100% fit to return to work. The applicant indicated that in this telephone message, a representative of the respondent stated in part: “I’ll need a paper from him [the applicant’s doctor] saying you know you’re fully recovered or you know you don’t have any restrictions or if…. or whatever the case may be”.
15The applicant attached a copy of Multi-Disciplinary Health Care Assessment, dated October 26, 2010 (the “Assessment”), which was sent to the Workplace Safety and Insurance Board. This Assessment does indicate that the applicant had temporary restrictions at that time with respect to “prolonged or overhead activities, extremes of neck motions and heavy lifting”. The Assessment concluded that the applicant required six more weeks of physiotherapy with the goal of restoring normal functional activities.
16The respondent filed a Response on March 11, 2011, denying any violation of the Code. The respondent explained that it is a private company owned by 4,000 members; 125 of which complained because of the language barrier that existed when the applicant was at the cash register. The respondent explained that, as a result of the complaint, the manager decided to relieve the applicant from her duties at the cash register, which they claim she performed on an exceptional basis. The respondent also raised the issue that “language” was not a protected ground under the Code.
17The respondent, in response to the applicant’s Request to amend, confirmed that the applicant had had a workplace injury in the summer of 2010. The respondent also provided a Return to work plan, signed by the applicant, under which she returned to work with modified meat department duties in July 21, 2010. She was still being provided with modified work in November 2010 in accordance with the Assessment.
18The respondent also provided all medical notes received from the applicant; the first of which was dated November 27, 2010, and which indicates that she would be off until December 1, 2010, for medical reasons. Thereafter, there is a series of notes which advises that the applicant is unable to work but which does not specify the reason. The final note is dated April 14, 2011, and states, in part: “She is not fit to return to Vernon EVER! She should look for alternate jobs. Probably with some limitations.” Vernon is the name of the grocery store owned and operated by the respondent. On the same day, the applicant tendered her resignation in writing.
19The parties also provided the Tribunal with a letter from the WSIB which denied the applicant further benefits on the basis that her full recovery date for her workplace injury was identified as February 3, 2011, and that any further loss of earnings was related to a “language barrier”.
THE REQUEST TO AMEND
20The first issue that the Tribunal must determine is whether the applicant should be permitted to amend her Application to include allegations of discrimination with respect to disability. In determining requests to amend applications, the Tribunal generally considers the nature of the amendment, the reasons for the amendment, the timing of the request to amend, and whether there would be prejudice to the respondent. See for example: Dube v. Canadian Career College, 2008 HRTO 336, and Wozenilek v. Guelph (City), 2010 HRTO 99.
21The respondents oppose the Request to amend on the basis that the applicant only sought to amend the Application after she received the Notice of Summary Hearing and that she is now filing an entirely different claim against the respondent. The respondent asserts that it is prejudiced because the applicant has significantly altered her Application. The respondent relies on the Tribunal’s decisions in Grills v. Proctor and Gamble Inc., 2011 HRTO 2009; Khokher v. Intercon Security Ltd., 2011 HRTO 1493; and Shakhnazarov v. George Brown College, 2011 HRTO 1917. The respondent asserts that the new allegations are untimely because she refers to events that occurred in January 2011; 11 months prior to filing the Request to amend.
22For the reasons that follow, I find that it is appropriate to grant the applicant’s Request to amend. Despite the allegation of untimeliness made by the respondent, it has conceded that the Request to amend relates to events that occurred within one year of the filing of her Application and the filing of her Request to amend. The applicant could have brought a new application and the Tribunal would have accepted this new application because it would have been timely. I find that it is administratively efficient to allow the amendment of the Application so that the Tribunal has the full facts and allegations before it in a consolidated manner. Further, in this case there is an overlap in the facts and the time period covered by the new allegations. Since the new allegations are timely, I do not accept the respondent’s assertion that it is prejudiced in these circumstances. All of the cases relied upon by the respondent refused to permit amendments largely on the basis that the proposed allegations were with respect to events that occurred over one year before the amendment was sought.
23As such, the Tribunal grants the applicant’s Request to amend the Application to includes allegations that the respondent failed to accommodate a disability in January 2011.
REASONABLE PROSPECT OF SUCCESS
24Details about the nature of a summary hearing were set out as follows in Dabic v. Windsor Police Service, 2010 HRTO 1994, at paras. 8 and 9:
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.
ALLEGATIONS WITH RESPECT TO ANCESTRY AND PLACE OF ORIGIN
25The respondent relied on the cases of Chau v. Olymel S.E.C\L.P., 2009 HRTO 1386 (“Chau”), Taylor v. Oraclepoll Research, 2009 HRTO 2089, and Arnold v. Stream Global Services, 2010 HRTO 424, for its position that the applicant’s inability to speak French in these circumstances is not a ground covered by the Code.
26Though language is not a prohibited ground of discrimination, it can be a defining characteristic of ethnicity and place of origin which are grounds protected by the Code. The onus is on the applicant to present sufficient facts to support a finding that language is being used as a proxy for prohibited grounds of discrimination. See Chau at para. 35.
27In this case, the applicant has not identified any proposed evidence which could lead to a finding that the respondent has infringed her rights under the Code. Indeed, the applicant’s lack of fluency in French is not sufficiently related or linked to the Code grounds as identified in the Application.
28As such, the Application as it relates to allegations of discrimination with respect to ancestry and place of origin has no reasonable prospect of success.
ALLEGATIONS WITH RESPECT TO DISABILITY
29I have reviewed the detailed submissions filed by the parties, with respect to the allegations of discrimination on the basis of disability.
30The applicant has not provided any evidence which would support that she requested any accommodation from the respondent, including that she had physical medical restrictions which prevented her from performing assigned duties in the meat department. In fact, in the Application, she asserts that she is “off work since incident due to emotional and mental health” rather than due to physical health.
31I have also reviewed the medical documentation provided by the parties and it is clear that after November 26, 2010, the applicant never provided the respondent with any documentation which would support the notion that she required or was seeking any accommodation for her disability. Indeed, the last medical note indicated that she would never be fit to return to work.
32The applicant has no evidence that she required any accommodation to perform her duties. Further, the proposed evidence of the applicant of the April 7, 2011, telephone call does not support her allegation that the respondent was refusing to accommodate her restrictions. It fact, it supports the notion that the respondent was seeking clarification of the applicant’s medical condition. In such circumstances, the applicant has no reasonable prospect of successfully establishing that the respondent did not accommodate her disability-related needs.
ORDER
33The Tribunal Orders as follows:
a. The applicant’s Request to amend the Application is allowed; and
b. The amended Application is dismissed in its entirety.
Dated at Toronto, this 28th day of September, 2012.
“Signed by”
Geneviève Debané
Vice-chair