Reyes v. LifeMark Health Management Inc., 2012 HRTO 289

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Juan Reyes Applicant

• and-

LifeMark Health Management Inc., Dr. Bob Grisdale, Chantal Sands and Florita Vargas Respondents

INTERIM decision

Adjudicator: Brian Cook Date: February 9, 2012 Citation: 2012 HRTO 289 Indexed as: Reyes v. LifeMark Health Management Inc.

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 in employment and contracts on the basis of race, colour, place of origin, ethnic origin, disability, association with a person identified by a Code-protected ground and reprisal. The Application arises out of the applicant's employment with LifeMark Health Management Inc. (LifeMark). The Application named LifeMark as a corporate respondent and also named two insurance companies, Wawanesa Insurance (Wawanesa) and Aviva Canada Inc. (Aviva), as corporate respondents, in addition to a number of personal respondents.

2The two insurance companies have each filed a Request for Order During Proceedings asking that they be removed as respondents. The applicant opposes the requests. The other respondents agree that the insurance companies should be removed.

3By Case Assessment Direction dated December 2, 2011, the Tribunal directed that a summary hearing be held to determine if there is no reasonable prospect that the Application can succeed. On December 28, 2011, the Tribunal issued a Notice of Summary Hearing scheduling a telephone conference call hearing for March 26, 2012.

4On January 5, 2012, counsel for LifeMark contacted the Tribunal asking for an adjournment of the scheduled summary hearing. In accordance with the Tribunal's Rules of Procedure, he provided alternate dates for the summary hearing in April 2012. The adjournment request was granted by the Tribunal and the summary hearing scheduled for March 26, 2012 was cancelled.

5On January 10, 2012, the applicant sent an email to the Tribunal indicating that there is a possibility that he might not be in Canada after February 2012 and that he would prefer a hearing prior to February 10, 2012. On January 10, 2012 the Tribunal advised the applicant that there are no available hearing dates in February, 2012.

6The applicant sent another email on January 11, 2012 stating that it is possible that he may not be able to participate in any proceeding by telephone after February 10, 2012 because he is applying for a job in a remote part of the world.

The Request by the insurance companies

7I find that it is appropriate to deal with the Request filed by each of the insurance companies that they be removed as respondents before dealing with the scheduling of the summary hearing.

8The Application sets out a very detailed account of the applicant's experience during the period he was employed by LifeMark. His job principally involved reviewing applications for disability insurance submitted to insurance companies, including Wawanesa and Aviva.

9The Application does not include an allegation of any discrimination on the part of Wawanesa or Aviva. The Application indicates that they were named because they ought to have known that LifeMark was discriminating against the applicant and should have asked LifeMark to stop the discrimination. The alleged discrimination that the applicant feels the insurance companies should have been aware of consisted of a requirement by LifeMark that the applicant indicate on his reports that he received his medical degree in the Dominican Republic. The applicant does not suggest that this requirement was in any way imposed or requested by the insurance companies. He appears to suggest that the insurance companies should have objected to the requirement and that a failure to object was discriminatory.

10The Tribunal does not have a general power to remedy claims of unfair treatment, abuse or harassment that is not linked to a ground listed in the Code. Rather, the Tribunal bases its jurisdiction on the provisions of the Code, and specifically, the prohibited grounds of discrimination covered by the Code.

11Rule 13.1 of the Tribunal's Rules of Procedure provides as follows:

13.1 The Tribunal may, on its own initiative or at the request of a Respondent, filed under Rule 19, dismiss part or all of an Application that is outside the jurisdiction of the Tribunal.

12In this case, the insurance company respondents have each filed a Request for Order During Proceeding asking the Tribunal to dismiss the Application as against them. The applicant had no employment or contractual relationship with the insurance companies and there is no suggestion that they either required or requested that the applicant indicate where he received his medical degree. For these reasons, even if the requirement imposed by LifeMark was discriminatory, there are no allegations against the insurance companies that raise prohibited grounds of discrimination covered by the Code for which the insurance companies could be liable.

13Given that there are no allegations made against the insurance companies that raised prohibited grounds of discrimination covered by the Code, the Tribunal does not have jurisdiction to deal with the applicant's complaints about the insurance companies and the Application as against Wawanesa and Aviva is dismissed.

Personal respondents

14The Application named three personal respondents, Dr. Bob Grisdale, Chantal Sands and Florita Vargas. In error, the Tribunal's Case Assessment Direction of December 2, 2011 omitted Dr. Grisdale from the style of cause. The Tribunal confirms that Dr. Grisdale is a named personal respondent in the Application, and the style of cause has been amended accordingly.

15In their response, LifeMark and the personal respondents asked the Tribunal to remove the personal respondents. The applicant opposes this request and asks to add more personal respondents.

16Any issues about adding or removing personal respondents will be dealt with as an issue in the summary hearing.

Scheduling the summary hearing

17The applicant has indicated that he may be moving to a remote part of the world and he anticipates that as a result, he may not be available to participate in a telephone conference call after February 10, 2012. He therefore has requested that the summary hearing occur in person and before February 10.

18I note that the applicant does not make the request for any Code-related reason. The request is based on a possible move to another country and based on the possibility that as a result of this move, he would not be able to participate in a telephone conference call.

19It is apparent that the applicant's concerns about his future availability are quite speculative. He does not know if he is moving and he does not know that he will have no telephone access if he does. Many remote areas of the world do not have land line telephone service but do have cell phone service. If telephone service is not at all available, an internet based solution such as Skype may be available.

20The applicant is responsible for providing the Tribunal and the respondents with current contact information. It is understandable that he may not be able to do this for some period of time if he is in fact moving out of Canada. However within approximately one month, the applicant should be able to determine what arrangements are available for him to allow him to participate in a telephone or internet based conference call. If this is truly impossible, the applicant should explain how he proposes to have the summary hearing heard.

21In the alternative, the applicant has the option of waiving his right to make oral submissions and having the summary hearing determined on the basis of written submissions. If he wishes to exercise this option, he should provide written submissions and confirm that he is waiving his right to make oral submissions. His written submissions should be sent to the Tribunal and counsel for the respondents.

ORDER:

22By March 16, 2012, the applicant must do the following:

1. Provide current contact information to the Tribunal and the respondents together with confirmation that he is available to participate in a telephone or internet based conference call, and provide at least five dates that he would be available in April and May 2012.

Or,

2. Confirm to the Tribunal and to the respondents that he wishes to waive his right to make oral submissions and provide the Tribunal and the respondents with written submissions on the issue of whether there is no reasonable prospect that the Application could succeed and his request to add personal respondents.

23If the applicant does not do one of the above by March 16, 2012, the Application may be dismissed as abandoned.