HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Candace Burgess
Applicant
-and-
College of Massage Therapists of Ontario and Rebecca Samms
Respondents
INTERIM DECISION
Adjudicator: Brian Cook
Indexed as: Burgess v. College of Massage Therapists of Ontario
APPEARANCES
Candace Burgess, Applicant
Self-represented
College of Massage Therapists of Ontario and Rebecca Samms, Respondents
Naomi Loewith, 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 because of disability.
2After reviewing the Application and the Response, the Tribunal directed a summary hearing be held to determine if the Application should be dismissed because there may be no reasonable prospect that the Application could succeed.
3The summary hearing process is outlined in Rule 19A of the Tribunal’s Rules of Procedure. In Dabic v. Windsor Police Service, 2010 HRTO 1994, 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.
4Sub-rule 19A.6 provides that where the Tribunal decides not to dismiss an Application following a summary hearing, it need not give reasons.
5The summary hearing was held by telephone conference call on October 29, 2012.
Background
6The applicant is a Registered Massage Therapist (RMT). According to the Response, the organizational respondent “develops and administers the entry to practice certification for candidates seeing registration as a Registered Massage Therapist.”
7Part of the licensing procedure involves Objectively Structured Clinical Examination (OSCE) testing. Students proceed from area to area, encountering “patients” who are paid actors who describe symptoms. The student’s ability to properly treat and assess the symptoms is reviewed by examiners, employed or contracted by the College.
8The process takes place annually between May and December, with sessions scheduled twice a week.
9People who are interested in working as an examiner apply early in the year. A two-day training program for examiners is run every April. During the training program the OSCE process and cases to be used that year are reviewed. The respondents state that the April training program is mandatory for any examiner.
10The applicant had worked as an examiner for about five successive years. In 2012, she applied again and was contracted to work on ten of the scheduled OSCE dates. The training program was scheduled for April 16 and 17, 2012.
11The applicant states that she was unable to attend the program on April 16, 2012 because she was very sick and could not even get out of bed. At the summary hearing, the applicant indicated that she had a very bad flu, and possibly also strep throat, on April 16, 2012, and that she remained quite ill for about four days.
12On April 17, 2012 she was on her way to try to get to the second day of the training but she learned that her contract had been cancelled because she had missed the first day.
13The applicant alleges that the respondents discriminated against her on the basis of disability by not accommodating her illness by letting her complete the training program in some other way or adjusting the requirements based on her history as an examiner.
14The respondents deny that they discriminated in any way contrary to the Code. The respondents argue that the applicant did not have a “disability” within the meaning of the Code and that the participation in the training program was a contractual obligation.
15“Disability” is defined in section 10 of the Code;
“disability” means,
(a)any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness and, without limiting the generality of the foregoing, includes diabetes mellitus, epilepsy, a brain injury, any degree of paralysis, amputation, lack of physical co-ordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment, or physical reliance on a guide dog or other animal or on a wheelchair or other remedial appliance or device…
Conclusions
16A determination of the merits of this Application involves consideration of the nature of the applicant’s illness and whether that illness was a “disability” as that term is defined in the Code. It also raises questions about the nature of the applicant’s relationship with the organizational respondent and whether this relationship was purely contractual or whether it involved an “employment” relationship as that term is referred to in the Code. Related to this are questions of whether the respondents had a duty to accommodate the applicant, and if so, to what extent. In my view, a determination of these issues requires evidence from the parties.
17Without expressing any opinion on the answers to these questions or on whether the Application will in fact succeed in whole or in part, I am satisfied that it cannot be said that there is no reasonable prospect that the Application can succeed.
Order
18The Application is not dismissed.
19The Tribunal will schedule a one day oral hearing to hear evidence and argument.
Dated at Toronto, this 31st day of October, 2012.
“signed by”
Brian Cook
Vice-chair