HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Darlene Loiselle
Applicant
-and-
Workplace Safety and Insurance Board
Respondent
INTERIM DECISION
Adjudicator: Geneviève Debané
Indexed as: Loiselle v. Workplace Safety and Insurance Board
APPEARANCES
Darlene Loiselle, Applicant
Kendal McKinney, Counsel
Workplace Safety and Insurance Board , Respondent
Gurjit Brar, Counsel and Agnes Wintersinger, Representative
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 age. The respondent filed a Response denying the allegations in the Application.
2In a Case Assessment Direction dated June 20, 2012, the Tribunal granted the respondent’s Request for a Summary Hearing.
3The Summary Hearing was held via telephone conference on October 12, 2012. All parties made oral submissions. Neither party filed any submissions in advance of the hearing. However, both parties were given the opportunity to file written submissions with respect to addressing the case-law referred to by the applicant during the summary hearing. The respondents filed these written submissions with the Tribunal on October 18, 2012. The applicant did not file any submissions in response which were due on October 25, 2012.
BACKGROUND
4The applicant had worked for the respondent in Windsor as a Vocational Rehabilitation Consultant from 1990 until 1998 when the respondent decided to use external providers to perform these duties.
5Thereafter, the applicant was employed by two external service providers to perform these duties. In 2009 the applicant resigned from her position with Crawford Healthcare Management Inc. (“Crawford”) and relocated to British Columbia.
6At some time in 2010, the respondent decided that it would discontinue the use of external service providers and that it would directly employ “Work Transition Specialists”.
7The applicant returned to Windsor in 2010, and applied without success for numerous positions posted by the respondent to work as a Work Transition Specialist. A number of her former co-workers have been successful in obtaining these positions. It is the applicant’s belief that she has not successfully obtained these positions because she is older than her former co-workers.
8The respondent’s position is that the applicant was not successful in obtaining the position because of alleged performance concerns when the applicant worked at Crawford. The respondent also asserts that when the applicant was eventually interviewed by the respondent her score was too low.
DECISION
9After considering the submissions of the parties and reviewing the pleadings, in my view, this Application and the Response raises issues of fact and credibility that will have to be determined at a hearing. While I make no findings as to the merit of the Application, it is sufficient to say, at this point, that the applicant has satisfied me that given the factual matrix, which includes the fact that the applicant appears to have been qualified and experienced for the position which she had performed in the past, she may be able to establish a link between the events alleged to have occurred and the ground of age. I cannot find that there is no reasonable prospect that this Application will succeed, and the Application is not dismissed.
10If the parties do not advise within 7 days of the date of this Interim Decision that they consent to mediation, the Application will be scheduled for two days of hearing in Windsor.
11I am not seized.
Dated at Toronto, this 7h day of December, 2012.
“Signed by”
Geneviève Debané
Vice-chair