Vassell v. Revera Long Term Care Inc., 2012 HRTO 30

Human Rights Tribunal of Ontario

Between:

Audrey Vassell Applicant

• and -

Revera Long Term Care Inc. o/a Versa Care Main St. and Elizabeth Bradshaw Respondents

Interim Decision

Adjudicator: Brian Cook Date: January 6, 2012 Citation: 2012 HRTO 30 Indexed as: Vassell v. Revera Long Term Care Inc.

Appearances By / Written Submissions

Audrey Vassell, Applicant | Self-represented Revera Long Term Care Inc. and Elizabeth Bradshaw, Respondents | Erin Porter, 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 in employment on the basis of disability and reprisal.

2Pursuant to a Case Assessment Direction dated July 19, 2011, the Tribunal scheduled a summary hearing, which was held on December 19, 2011 by telephone conference call. The applicant and her daughter participated. The respondents were represented by Erin Porter, who is in house counsel for the corporate respondent. The personal respondent also participated and so did the corporate respondent's Director of Labour Relations.

3The Application alleges a failure to accommodate the applicant's disability on various occasions prior to January 2008, when she signed Minutes of Settlement, and again in May 2009. Minutes of Settlement were also signed in respect of the alleged events in May 2009. The Application also alleges that the applicant experienced reprisal at various times.

4The applicant alleges that after she filed the Application in June 2010, there was a further failure to accommodate in October 2010 and also reprisal for having filed the Application. She filed a Request for Order During Proceedings in June 2011, asking that the Application be amended to include these allegations regarding events after the Application was filed. At the summary hearing, the respondents advised that they were not opposed to the applicant's Request for Order During Proceedings as they would prefer to have all issues dealt with at the same time.

5The applicant is a member of the Christian Labour Association of Canada (the "union") which is the bargaining agent for the corporate respondent's unionized workers. The union has filed a Request to Intervene in respect of the Application, which is opposed by the applicant and not opposed by the respondents. The union did not participate in the summary hearing.

The Summary Hearing Process

6The summary hearing process is authorized by Rule 19A of the Tribunal's Rules of Procedure. Rule 19A.1 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.

7A finding by the Tribunal that it is not the case that there is no reasonable prospect of success does not mean that the Application will succeed. It only means that the Tribunal will continue to process the Application.

8In Dabic v. Windsor Police Service, 2010 HRTO 1994, the Tribunal made the following comments about summary hearings, at paras. 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.

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.

Background

9The applicant is employed by the corporate respondent as a Health Care Aide. The personal respondent is the corporate respondent's Executive Director. The applicant started this employment in 1998.

10The applicant has a knee disability and has medical restrictions associated with that disability, including restrictions against prolonged walking. The Application alleges that the respondents failed to accommodate the applicant and that on several occasions she was given work that exceeded the restrictions.

11The applicant also alleges that she has been reprised against as a result of her attempts to pursue her human rights.

Allegations About the Accommodation Process Before the Application Was Filed

12The union filed a grievance in October 2006 relating to the applicant's allegations about accommodation to that time. The grievance was settled in Minutes of Settlement, dated January 23, 2008. The Minutes were signed by the applicant, the union and the employer. Among other things, the Minutes provided that the applicant would be assigned to work on the third floor part-time day shift but that, subject to the provisions of the Collective Agreement, "the Grievor may be assigned to other floors as needs arise". As well, the applicant could "accept call-in shifts on all floors." The applicant was also paid a sum of money less statutory deductions.

13Paragraph 3 of the Minutes provides:

The Union and the Grievor agree not to file any grievance, complaint or other action" in relation to the period from November 2006 to January 23, 2008, the date the Minutes were signed.

14Paragraph 9 of the Minutes provides:

The Union and the Grievor agree that the placement of the Grievor on the 3rd floor constitutes reasonable accommodation, and satisfies the Employer's duty to accommodate, given the Grievor's current medical restrictions.

15The applicant alleges that after these Minutes were signed, she next experienced a failure to accommodate her disability on or about May 22, 2010 when she was assigned to the first floor. This incident led to a grievance that was settled with a Memorandum of Settlement, dated June 1, 2010. The applicant was paid for the lost time she experienced as a result of the alleged failure to accommodate. One of the terms of the Memorandum of Settlement was the following:

The grievor hereby acknowledges that she has read and understood the terms of this settlement, enters into it voluntarily and without duress and that the Union has fairly and properly represented her regarding this matter.

16The respondent submits that as a result of the 2008 Minutes of Settlement and the June 1, 2010 Memorandum of Settlement, the applicant should not be permitted to bring an Application to this Tribunal in relation to allegations of a failure to accommodate for any period prior to January 23, 2008 or in respect of the alleged failure to accommodate in May 2010. The applicant does not agree. She argues that she signed the Minutes and the Memorandum under duress.

17In general, a person who has entered into a settlement of a grievance dealing with the same facts as those set out in the Application is not permitted to bring the Application to the Tribunal. The reasons for this were explained in Dunn v. Sault Ste. Marie (City), 2008 HRTO 149 at paragraphs 34 – 35:

The importance of final and binding settlements in the unionized workplace is articulated in the purposes of the [Labour Relations Act], which include "[t]o promote the expeditious resolution of workplace disputes". The importance of binding agreements was articulated by the OLRB as follows in TRW Automotive (Kelsey-Hayes Canada Ltd.), [2000] OLRB Rep. July/Aug. 731 at para. 14:

Parties are entitled to rely on agreements freely entered into. Nothing would be more disruptive to orderly labour relations than to permit parties to revoke agreements among employees, their trade union, and their employer into which the parties have entered to settle disputes or potential disputes.

This is true of human rights disputes, in whatever social area they arise. There is a strong public interest in ensuring that when parties freely choose to resolve the substance of a human rights dispute, in whatever forum it is brought, the matter is at an end. This is a fundamental principle that should guide the Tribunal in the interpretation of s. 45.1, because to do otherwise could make the finality of settlements highly uncertain.

18For the applicant to succeed in regards to the parts of the Application that relate to the alleged events up to January 2008 and in May 2009, which were the subject of a settlement, the applicant would have to show that she did not freely agree to the settlement.

19On this point, the applicant says that she signed the Minutes of Settlement and the Memorandum of Settlement under duress. The only basis for this assertion appears to be that she did not discuss the settlements with her family. In my view, there is no reasonable prospect that the applicant would be able to prove that she signed the Minutes and Memorandum under duress. The applicant was represented in the proceedings leading to the settlement. The settlements appear to be reasonable and typical of settlements reached in similar circumstances. Evidence that the applicant did not discuss settlement options with her family would not cause the Tribunal to accept that the applicant signed under duress.

20Even if the applicant was able to prove that she only signed the settlements under duress, she would then have to explain the delay in bringing the Application. Section 34 of the Code provides as follows:

34. (1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series.

(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

21The Application was filed on June 14, 2010. This was more than one year after the events in May 2010 and several years after the events that were the subject of the 2008 Minutes of Settlement. There is no evidence that the delay was incurred in good faith.

22For these reasons, I am satisfied that there is no reasonable prospect that the Application could succeed with respect to the allegations of a failure to accommodate in the period before the Application was filed.

Allegations About the Accommodation Process in October 2010

23The applicant alleges that there was again a failure to accommodate her disability in October 2010, after she filed the Application in June 2010. She says that she was called on October 19, 2010 and asked if she wanted to fill in for an absent employee for two shifts, on October 19 and 20, 2010. She was not told that the shifts involved working on the first floor, which requires more walking than does her usual shift on the 3rd floor. She alleges that she asked the manager to switch her with someone on the 3rd floor but she was refused. She later arranged a switch herself with a co-worker but the supervisor then refused to allow the shift.

24There was no grievance filed in respect to these alleged events.

25As noted, the applicant filed a Request for Order During Proceedings, asking that the Application be amended to include the allegations about the October 2010 events. The respondents do not oppose the requested amendment. In these circumstances, I will allow the requested amendment to the Application.

26The respondents argue that the applicant will be unable to establish that the events in October 2010 resulted from a failure to accommodate because the arrangement was consistent with the 2008 Minutes of Settlement, which provided that while she would ordinarily work on the 3rd floor, she could accept call in shifts for any floor. The applicant argues that she will be able to show a failure to accommodate because allowing her to switch with a worker on another floor would have been reasonable and would not have resulted in undue hardship for the respondents.

27I find that it cannot be said that there is no reasonable prospect of success with respect to the allegation that the events in October 2010 were a failure to accommodate contrary to the Code. At this stage, it is not appropriate to make any findings with respect to the applicant's allegations or the respondents' defence. It is sufficient to say that the applicant has satisfied me that she may be able to establish a link between the events alleged to have occurred in October 2010 and the grounds upon which she made the claim (i.e. a failure to accommodate contrary to the Code). As noted earlier, this does not mean that the applicant will succeed, but only that the Tribunal will continue to process this aspect of the Application.

Allegations About Reprisal

28The Application alleges that the respondents reprised against her both before and after she filed the Application.

29Section 8 of the Code, which prohibits reprisals or threat of reprisals, states:

Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal.

30To successfully make out a claim of reprisal, the applicant must demonstrate that she experienced reprisal for:

• claiming or enforcing a right under the Code;
• instituting or participating in proceedings under the Code; or
• refusing to infringe the right of another person.

31In regard to the period before the applicant filed the Application, she says that she tried to assert her rights under the Code but met with "very little success". However, there are no allegations of anything specific that occurred that was in reprisal in respect of these attempts and it does not appear that these attempts went as far as a claim or proceeding or application. There is no suggestion that the she experienced difficulties related to a refusal to infringe the Code-protected rights of any other person.

32I am satisfied that there is no reasonable prospect that the applicant could successfully establish that she experienced reprisal within the meaning of section 8 of the Code for any period before the Application was filed.

33In regard to the events after the Application was filed, the applicant concedes that nothing was specifically said to suggest that anything was being done in reprisal for her having filed the Application. However, she believes that the various labour relations issues that arose after she filed the Application were likely influenced by the fact that she had filed the Application.

34The respondents note that the history between the parties in this case has been strained and marked by numerous confrontations and labour relations issues. This was the case before the Application was filed and also after the Application was filed. There is no indication that the fact that the Application was filed changed the behaviours of anyone concerned.

35I agree with the respondents on this point and I am accordingly satisfied that there is no reasonable prospect that the applicant could successfully prove that she experienced reprisal within the meaning of section 8 of the Code after she filed the Application.

Decision

36The Application as amended is dismissed because there is no reasonable prospect that the Application will succeed except for the allegations concerning the events in October 2010.

37The Tribunal will continue to process the Application in regard to the alleged events in October 2010.