Thompson v. H.A. Madill Drywall Ltd., 2012 HRTO 2073

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Chris Thompson

Applicant

-and-

H.A. Madill Drywall Ltd.

Respondents

DECISION

Adjudicator: Douglas Sanderson

Date: October 31, 2012

Citation: 2012 HRTO 2073

Indexed as: Thompson v. H.A. Madill Drywall Ltd.

APPEARANCES

Chris Thompson, Applicant

Self-represented

H.A. Madill Drywall Ltd, Respondent

Matthew Mihailovich, Counsel

Introduction

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 with respect to employment because of disability.

Background

2In his Application, the applicant states that he suffered a head injury while working for the respondent. The applicant stated that the injury caused him to suffer reduced cognitive functions, which were described in documents completed by his physicians that the respondent had access to pursuant to the WSIB’s processes. The applicant states that he requested that the respondent communicate to him in writing because he is better able to take in and process information presented in writing. Notwithstanding this request, the applicant alleges that the respondent called him on the telephone on September 25, 2010 and gave him information he was not able to follow.

3In its Response, the respondent states that the applicant requested communication in writing through the WSIB and reiterated the request in a letter from his physician that the respondent received on March 28, 2010. The respondent acknowledged calling the applicant on September 23, 2010 regarding returning to work, as they understood that the WSIB had also been in contact with him by telephone. The respondent states that it left a voicemail message for the applicant and also sent the applicant a letter describing the options available to him. The letter was returned to the respondent, undelivered.

4On March 9, 2012 the respondent filed a Request for Summary Hearing (the "Request") and the applicant filed a Response to the Request on April 2, 2012. By Case Assessment Direction ("CAD"), dated April 5, 2012, the Tribunal granted the Request and ordered a summary hearing to determine whether the Application should be dismissed, in whole or in part, because the Application has no reasonable prospect of success. In the CAD, the Tribunal set June 18, 2012 as the date of the summary hearing, but indicated that the applicant could request that the summary hearing be conducted in writing. By e-mail message dated April 18, 2012, the applicant requested that he be allowed to make written submissions regarding whether the Application should be dismissed and also for the summary hearing to proceed orally on the scheduled date to allow the Tribunal to ask the applicant any questions it may have regarding his written submission. By CAD, dated June 14, 2012, the Tribunal granted the request for a written hearing and directed the applicant to file the submissions by June 29, 2012. The oral summary hearing was cancelled and the Tribunal noted that it could direct the applicant to provide submissions should it have questions for the applicant or require clarification.

5On June 29, 2012, the applicant filed both his submissions regarding the summary hearing and a Request for an Order During Proceedings seeking to amend the Application. In his submissions regarding the summary hearing, the applicant stated that he relied on the facts set out in the proposed amended Application in support of his position that the Application should not be dismissed for having no reasonable prospect of success. The applicant also relied upon his Response to the Request of April 2, 2012.

6The respondent was not required to file additional submissions but on June 1, 2012 filed and submitted documents in anticipation of the summary hearing.

Submissions

The Applicant

7The applicant submitted that the respondent was made aware of his disability caused by his head injury on several occasions. In that regard, the applicant referred to information provided by his physicians that indicated that the applicant experienced symptoms including decreased concentration and attention, depression, personality change, poor memory, irritability, headaches and low energy. The applicant submitted that the respondent was granted access to his medical information related to his WSIB file and therefore was aware of his condition.

8The applicant submitted that he requested the respondent to accommodate him by communicating in writing. The applicant pointed to two letters he sent to the respondent, dated January 24, 2010 and January 28, 2010, in which he informed the respondent that he would accept only written communication from the respondent because the applicant perceived the respondent to be dishonest and to have engaged in harassment. The applicant also pointed to a letter dated March 10, 2010 written by one of his physicians, which included the following advice: "As you know he [the applicant] has been struggling with a number of cognitive limitations. It would be best if you could please communicate with Mr. Thompson in writing as his ability to process information orally and retain the necessary short-term memory is limited."

9The applicant submitted that the respondent did not respond to the applicant's request and did not accommodate his disabilities as requested or in any other way. The applicant submitted that the respondent telephoned him several times between September 23, 2010 and October 15, 2010. The applicant noted that the respondent stated that it sent him a letter, but he did not receive it and in any event the letter, now disclosed, did not offer accommodation.

10In the proposed amendments to the Application, the applicant states that on October 10, 2010 he wrote to the respondent to inform it that his doctor advised him that he was not able to work at that time. The applicant also informed the respondent that his driver's license had been suspended due to his medical condition.

11The applicant also alleges in the proposed amendments to his Application that the respondent asserted on a number of occasions that the applicant failed to maintain communication with it after his injury and reported this alleged failure to the WSIB. The applicant asserts that the respondent’s allegations that he failed to communicate with the respondent is false and amounts to discrimination and harassment. The applicant also alleges that the respondent’s personnel violated his privacy by attending at his home. The applicant asserts that this privacy breach amounts to harassment.

12The applicant submitted that the respondent's failure to accommodate him caused him confusion because he was unable to understand and respond to information presented to him. The applicant also submitted that his return to work has been hampered. The applicant submitted that repeatedly having to deal with issues related to his injury has caused him to be more depressed and he suffered significant stress in negotiating the process he does not fully understand. He has also experienced anxiety regarding potential negative impacts to his WSIB claim. Further the applicant submits that the time and energy spent on the Application has been at the expense of other important activities. By letter dated December 2, 2010, the WSIB informed the applicant that his workplace accident on October 29, 2009 did not result in a permanent injury or cause a permanent worsening of any pre-existing injury. Rather, the WSIB concluded that pre-existing health issues, not related to his accident on October 29, 2009, were the source of his difficulties. Consequently, the applicant no longer met the criteria for WSIB benefits or services. The applicant has not returned to work with the respondent.

The Respondent

13In the Request, the respondent submitted that the medical information provided by the applicant prior to March 28, 2010 gives no indication that the applicant's disability has any effect on his ability to communicate. The respondent submits that the applicant's letters of January 24 and 28, 2010 do say that the applicant will communicate only in writing with the respondent, but not for any disability-related reason. Rather, the applicant insisted on written communication because he believed the respondent was lying regarding his WSIB claim and wanted a written record to demonstrate this. The respondent submits that the letter from the applicant's physician received by the respondent on March 28, 2010 does not indicate that communication with the applicant should be restricted only to writing. The respondent submitted that the applicant did in fact engage in oral communication on a number of occasions. Regardless, the respondent states that it respected the recommendation and communicated only in writing with the applicant until September 23, 2010.

14The respondent submitted that it understood that the WSIB had had oral communications with the applicant and there was no requirement to communicate exclusively in writing with the applicant; therefore, it made a telephone call to the applicant on September 23, 2010 to discuss returning to work with him. The respondent left a voicemail message and followed up with a letter, which was later returned to the respondent and not received by the applicant. The respondent also disclosed an e-mail message, dated April 9, 2012, to the applicant in anticipation of the summary hearing. In the e-mail message, counsel for the respondent identified four telephone calls the respondent made to the applicant between September 23, 2010 and October 15, 2010 and explained to the applicant the nature of each call. In each case, the purpose of the call was to follow up on a voicemail message left on September 23, 2010 and ask the applicant to contact the respondent regarding his return to work. The respondent’s stated that their personnel actually spoke directly with the applicant once, on October 8, 2010, but the applicant indicated he could not speak because he was speaking with someone else. The respondent left the applicant voice mail messages to contact the respondent on each other occasion. The respondent submitted that the applicant did not respond to these inquiries.

15The respondent submitted that the applicant's allegation cannot reasonably be considered to amount to Code violations and that the applicant failed to show a link between the alleged offence and any prohibited grounds of discrimination. The respondent opposed the Request to Amend the Application on the basis that the applicant seeks to completely re-write and expand his Application to salvage an Application that fails to disclose any reasonable prospect of success. The respondent submitted that Request to Amend comes one year and nine months after the applicant filed the Application and nearly two and a half years after the incidents giving rise to the Application. The respondent submitted that it would suffer prejudice if the Tribunal grants the Request to Amend.

Analysis and Decision

16Section 5 of the Code states as follows:

(1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.

(2) Every person who is an employee has a right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.

17Rule 19A.1 of the Tribunal’s Rules of Procedure provides:

The Tribunal may hold a summary hearing, on its own initiative or at the request of a party, on the question of whether an Application should be dismissed in whole or in part on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.

18In Dabic v. Windsor Police Service, 2010 HRTO 1994, the Tribunal made the following comments at paragraphs 8-10:

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.

19For the reasons that follow, I have dismissed the Application. Consequently, I do not need to determine whether the Application should be amended as the applicant requested. The applicant indicated, however, that the facts asserted in the proposed amendments to the Application support his submissions that the Tribunal should not dismiss the Application because it has no reasonable prospect of success. Accordingly, I have treated the facts asserted in the proposed amended Application as evidence the applicant has or has reasonably available to him for the purposes of the summary hearing.

20The applicant’s primary allegation is that the respondent failed to accommodate him; therefore, it is appropriate to briefly review how the duty arises under the Code. In Baber v. York Region District School Board, 2011 HRTO 213, the Tribunal pointed out that 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 under the Code. In other words, the duty to accommodate only arises where an applicant has been subject to direct or adverse effect discrimination. The applicant bears the onus in a summary hearing of demonstrating that he has a reasonable prospect of success in establishing a case of discrimination.

21Jurisprudence regarding the duty to accommodate clearly establishes that all 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. The employer, however, is primarily responsible for determining how an employee can be accommodated, based on the information provided by the employee regarding his or her restrictions. See for example, Renaud 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.

22Therefore, to establish the respondents were obliged to accommodate him, the applicant must provide evidence demonstrating that he identified his need for accommodation in relation to a requirement or factor that discriminated against him, directly or in effect, because of his disabilities.

23The applicant must also establish that the respondent’s actions caused him to suffer a substantive disadvantage. The Supreme Court of Canada’s decision in Andrews v. Law Society of British Columbia, 1989 CanLII 2 (SCC), [1989] 1 S.C.R. 143 defined discrimination at pages 174-75 as follows:

Discrimination is a distinction which, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, has an effect which imposes disadvantages not imposed upon others or which withholds or limits access to advantages available to other members of society.

24To amount to a violation of the Code an applicant must establish substantive discrimination, not merely differential treatment. In McGill University Health Centre (Montreal General Hospital) v. Syndicat des employés de l'Hôpital général de Montréal, 2007 SCC 4, [2007] 1 S.C.R. 161, Abella J. stated at para. 49:

(…) there is a difference between discrimination and a distinction. Not every distinction is discriminatory. It is not enough to impugn an employer's conduct on the basis that what was done had a negative impact on an individual in a protected group. Such membership alone does not, without more, guarantee access to a human rights remedy. It is the link between that group membership and the arbitrariness of the disadvantaging criterion or conduct, either on its face or in its impact, that triggers the possibility of a remedy. And it is the claimant who bears this threshold burden.

25In Ontario (Disability Support Program) v. Tranchemontagne, 2010 ONCA 593, the Ontario Court of Appeal also stated at paragraph 104 that the Tribunal must determine, among other things, whether the treatment in issue “truly creates a disadvantage.”

26The applicant pointed to evidence that he asked the respondent to accommodate him by communicating with him in writing because of his disability related restrictions, although the medical evidence does not call for communication exclusively in writing. The applicant also pointed to evidence that the respondent attempted to speak with him by telephone on several occasions in September and October 2010. In my view, the applicant has not pointed to evidence that would establish that these telephone calls, or the failure to communicate in writing during this time, resulted in any true disadvantage to him.

27The applicant submitted that the respondent's failure to communicate in writing hampered his return to work. The applicant, however, pointed to no evidence that he has or is reasonably available to him that he wanted to return to work in September and October 2010 and was seeking information regarding that process and the respondent provided that information in a format inappropriate to him. To the contrary, the applicant indicates in the proposed amendments to the Application that on October 10, 2010 he wrote to the respondent to inform it that his doctor informed him that he could not work at that time and that his driver's license had been suspended because of his condition. The applicant noted in his submissions that driving to the respondent's office is a two-hour round-trip. Consequently, the manner in which the respondent communicated with the applicant had no effect on his return to work because it was his position that he was unable to work or even to drive to work because of his condition. The respondent stated that it left voice mail messages for the applicant regarding having him return to work and the applicant pointed to no evidence contradicting that assertion. To the extent the applicant argues that the attempts to communicate by phone are by themselves discrimination I find he has no reasonable prospect of success in demonstrating that the medical information provided to the respondent required to the respondent to communicate exclusively in writing.

28The applicant pointed to no evidence that the respondent's telephone communication in September and October 2010 had any negative effect on his WSIB claim. The applicant also pointed to the significant time and energy he has been required to expend, at the expense of other activities, to pursue this Application. An Application to the Tribunal is a significant matter and can require a considerable commitment of time and energy. This commitment, however, arises out of the applicant's decision to pursue his rights under the Code and do not amount to a disadvantage caused by the respondents alleged violation of the Code. In these circumstances, I find the applicant could not establish, through the evidence he has or has reasonably available to him, that the respondent's alleged failure to accommodate his disability resulted in a substantive disadvantage to him.

29The applicant pointed to evidence that the respondent was dishonest when it accused the applicant of failing to communicate with it and when it repeated these accusations to the WSIB. Accordingly, there is some evidence that the respondent may have acted inappropriately or unfairly towards the applicant in making these accusations. However, not all inappropriate conduct is prohibited by the Code and the Tribunal has noted on several occasions that it does not have a general power to inquire into claims of unfairness which are not covered by the Code. Rather, the applicant must point to evidence that he has or that is reasonably available to him that could establish a link between the respondent’s alleged actions and the alleged prohibited grounds of discrimination. The applicant did not, however, point to any evidence that would link the respondent’s alleged dishonesty and his disability. Similarly, privacy issues are not covered by the Code and the applicant pointed to no evidence that the respondent’s personnel attending at his home was linked to disability.

30For the foregoing reasons, I find the Application has no reasonable prospect of success.

ORDER

31The Application is dismissed.