Hansen v. Ideal Ladies Wear Ltd., 2012 HRTO 349

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Shelley Hansen

Applicant

-and-

Ideal Ladies Wear Ltd. and Dianne Hill

Respondents

decision

Adjudicator: Ian R. Mackenzie

Date: February 17, 2012

Citation: 2012 HRTO 349

Indexed as: Hansen v. Ideal Ladies Wear Ltd.

APPEARANCES and wRITTEN SUBMISSIONS

Shelley Hansen, Applicant ) Charles Forster, Counsel

Ideal Ladies Wear Ltd. and ) Carol VandenHoek, Counsel

Dianne Hill, Respondents )

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.

2In a Case Assessment Direction (“CAD”) issued on September 14, 2011, the Tribunal directed that a summary hearing be held to determine whether the Application should be dismissed on the basis that there is no reasonable prospect that it will succeed.

Allegations

3The summary of allegations is taken from the Application. In their Response, the respondents deny the allegations

4The applicant was employed at Ideal Ladies Wear Ltd., a clothing store, for approximately six-and-a-half years. Dianne Hill is the owner of the store. The applicant alleges that she witnessed an assault of a co-worker at the store and that she suffered “emotional and psychological stress, anxiety and fear” and did not feel she was able to return to work without the issue of violence in the workplace being addressed. The applicant’s doctor provided a medical note shortly after the incident stating that she was off work “with a medical illness and will be required to be off for two weeks from today”.

5The applicant states that there was a suggestion by the respondents that a mediator would be retained to deal with workplace issues, but that the respondents did not follow through with the suggestion.

6The applicant did not return to work. The respondents state that no further medical information was provided by the applicant and she was considered to have abandoned her position.

Submissions

7The applicant submitted that she became disabled as a result of the actions of the respondents. She relied on the note from her doctor and submitted that further evidence was available to prove that she had a disability.

8The applicant submitted that the respondents failed to accommodate her disability when it did not address the poisoned work environment. She submitted that she could not return to the workplace until the threat of harm in the workplace was removed. The failure to accommodate on the part of the respondents was the failure to remove the cause of the applicant’s disability.

9The respondents submitted that there was no link between the allegations of harassment and a prohibited ground of discrimination under the Code. The respondents denied the allegations, but stated that even if they were true, the Application does not demonstrate a nexus between the events and a ground of discrimination. In the view of the respondents, the applicant is in the wrong forum to address her concerns about the workplace.

10The applicant submitted that the appropriate test was to first determine if the applicant was suffering from a disability and then to ask if she was being treated differently from other employees of the respondents. The failure to deal with the toxic work environment was a failure to accommodate the applicant.

Analysis and Decision

11The nature of a summary hearing was set out in Dabic v. Windsor Police Services, 2010 HRTO 1994, at paras. 8 and 9. The relevant issues in this summary hearing are the following:

• Assuming the allegations to be true, can those allegations be reasonably considered to amount to a violation of the Code?

• Is there a reasonable prospect that the applicant can show a link between the alleged actions of the respondents and her disability?

12It is not clear from the Application that the applicant is a person with a disability. The applicant has submitted that she can provide additional evidence to support a finding of a disability. For the purposes of this summary hearing, I have assumed that she can establish that she has a disability within the meaning of disability under the Code.

13In the CAD it was noted that the Tribunal does not have the general power to deal with allegations of unfairness, workplace harassment or incidents that lead to medical conditions. In her submissions, the applicant has focused her arguments solely on the events that happened after she became disabled. It is her position that the failure of the respondents to address the workplace issues generally (issues that do not fall under the Code) is a breach of the duty of the respondents to accommodate her disability.

14In my view, the argument of the applicant is a round about way of seeking to make the respondents liable for actions that do not fall under the Code. In effect, the applicant is saying that non-Code related actions of the respondents were the cause of her disability and in order to now accommodate that disability, the respondents must address those same non-Code related issues.

15The applicant is attempting to have the Tribunal address issues relating to a poisoned work environment that are not governed by the Code. The Tribunal does not have the jurisdiction to examine these issues. The applicant is in the wrong forum to address the underlying causes of her disability. On this basis, I conclude that the Application has no reasonable prospect of success.

16Accordingly, the Application is dismissed.