Pazhaidam v. North York General Hospital, 2012 HRTO 363

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Cyril Pazhaidam

Applicant

• and-

North York General Hospital and Service Employees International Union, Local 1

Respondents

INTERIM decision

Adjudicator: Ian R. Mackenzie

Date: February 21, 2012

Citation: 2012 HRTO 363

Indexed as: Pazhaidam v. North York General Hospital

wRITTEN SUBMISSIONS

Cyril Pazhaidam, Applicant ) Ron Franklin, Counsel

North York General Hospital, Respondent ) Hal Rolph, Counsel

Service Employees International ) Michael Church and Jesse Kugler Union, Local 1, Respondent ) Counsel

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. This Interim Decision addresses the Request for an Order during a Proceeding ("RFOP") of the respondent, Service Employees International Union, Local 1 ("SEIU"), as well as a number of procedural issues relating to the scope of the Application, the disclosure of documents, and witnesses' will-say statements.

2The oral hearing of this Application was scheduled for October 3 and 4, 2011. In an interim decision issued on September 8, 2011, 2011 HRTO 1663, I denied a request for an adjournment and granted an extension of time until September 26 for the applicant to file his disclosure of documents and witness statements.

3On September 26, 2011, the applicant filed his documents and witness list, in accordance with the Tribunal Rules. He also filed a response to the RFOP of SEIU on the same day. The SEIU has requested in its RFOP that the Application, as against it, be dismissed as showing no reasonable prospect of success.

4On September 28, 2011, the applicant filed an RFOP requesting further particulars and further disclosure. It was clear from the request that the applicant intended to add additional allegations to his Application.

5On September 30, 2011, the applicant sought the permission of the Tribunal to add four witnesses to his list of witnesses. A summary of the evidence of only one of the four witnesses was included. The applicant stated that he had not yet been able to contact the other three witnesses.

6On October 2, 2011, the North York General Hospital ("NYGH") requested further particulars about the applicant's medical restrictions, including medical reports. It also requested further particulars on why the applicant intended to rely on correspondence from the Workplace Safety and Insurance Board (WSIB). In addition, it reiterated its position in its Response that allegations relating to an incident in January 2008 be dismissed on the basis of relevance.

7At the commencement of the hearing I heard submissions from the parties on whether it was appropriate to amend the Application to include the additional allegations. I also heard submissions on the other issues raised by the parties. The hearing was then adjourned.

Background

8The summary of the facts is taken from the Application.

9The Application was filed on November 17, 2009. At the time that he filed the Application, the applicant was not represented. Sometime after filing his Application and up until May of 2011, the applicant was represented. He retained new counsel in September of 2011.

10The applicant is a part-time cleaner at the NYGH and has been employed there since 1998. In his Application, the applicant states that he experienced discrimination on the basis of disability. He refers to a workplace injury suffered in May of 2008. Given his restrictions, a clerical position was recommended by his doctor. The applicant states that he was applying for clerical positions from May of 2008, but was unsuccessful because he was in a different bargaining unit from those in the clerical category.

11By the end of August 2008, the applicant was being accommodated in a series of temporary positions in a clerical role. When those temporary assignments came to an end, the NYGH told the applicant that there were no jobs available that met his restrictions. The applicant was off work from February 28, 2009 until the WSIB negotiated a return to work on May 28, 2009. He states that he was being considered for two clerical positions, but had to be cleared by his doctor before being interviewed for the positions. His doctor was away from the office and did not sign the necessary forms, so the applicant was not considered for these positions.

12On September 2, 2009, the applicant states that he had an interview for a full-time cleaner position. He alleges that the hiring manager was not aware of his medical restrictions. On September 3, 2009, the applicant states that he told the manager that he wanted the position and asked if the work assignment could be modified to meet his medical restrictions. He alleges that she told him she was unaware of any medical restrictions and could not accommodate him.

13The applicant alleges in his Application that the SEIU "has been little or no help". He alleges that the SEIU steward told him that he did not have seniority in the clerical bargaining unit.

14The applicant also alleges in his Application that in his current modified position, he is continually being judged and ridiculed by his co-workers.

15In his Application, the applicant also refers to a denial of a full-time cleaner position in January of 2008. He states that the position was in the post-partum unit of the hospital and that he was denied the position because of his gender. He has not alleged discrimination on the basis of sex in his Application.

16In the requested remedy in the Application the applicant has asked for the following:

a. damages against the NYGH for pain and suffering and loss of dignity;

b. compensation for loss of benefits, seniority and pension;

c. return of union dues and damages for pain and suffering against the SEIU;

d. full-time status from May of 2008;

e. changes to organization policies on how injured workers are handled;

f. transparency within the bargaining units to allow injured workers to transfer to an appropriate position;

g. education for managers and union stewards on the rights of injured workers;

h. a letter of apology to the applicant; and

i. a letter of apology to past and present employees "whom they have affected and the remedies they have made to ensure this process doesn't occur in the future".

New allegations of the applicant

17In his September 29, 2011 RFOP, the applicant requested that the respondents produce all documents in their possession relating to the following categories:

1. The full-time cleaner position that he was interviewed for in September of 2009, including the following: job description; job postings; physical demands analysis; compensation information; notes from applicant's interviews, information regarding the seniority and qualifications of all applicants, and information relating to the decision to choose the successful applicant;

2. Corporate, departmental and/or SEIU policies, programs and procedures with respect to employees with disabilities;

3. A list of all job openings/positions in 2008 and 2009 in the Service and Clerical bargaining units and job descriptions and physical demand analyses for each position;

4. A list of employees in the bargaining unit represented by SEIU with permanent disability-related restrictions that have been accommodated, as well as the length of their absence from the workplace prior to being accommodated;

5. A list of employees in the bargaining unit represented by SEIU with permanent disabilities that NYGH did not or could not accommodate in 2008 and 2009, and the length of their absence from the workplace.

18In the RFOP, the applicant stated that the requests in numbers 1 and 2 above are relevant to the allegations surrounding the refusal to accommodate him in September 2009 (related to the full-time cleaner position). The NYGH had no concerns about disclosing the documents relevant to the position applied for in September 2009, if those documents had not already been disclosed. It also had no objection to the request for disclosure of any accommodation policies.

19In the RFOP, the applicant stated that the requests in numbers 3 to 5 above are relevant to his claim that the respondents discriminated against him "and in particular contributed to the formation and reinforcement of an informal but deeply entrenched workplace rule that excludes disabled employees from positions based on the mere prospect that they might need accommodation".

20In his RFOP dated September 30, 2011, the applicant stated that he had identified four additional witnesses that had additional information that he believed to be relevant to the Application. His counsel stated in the letter accompanying the RFOP that he had only been able to contact one of the four witnesses, Daisy Samuels. The applicant stated that Ms. Samuels would provide evidence about her personal experience with both respondents in seeking accommodation at work. The applicant submitted that this "similar fact evidence" would be relevant and of high probative value. The RFOP did not contain a summary of the intended evidence of the other three witnesses. In the covering letter to the RFOP, counsel stated that the applicant could provide the witness statements in advance of the next scheduled hearing dates.

21The applicant submitted that the January 2008 incident involving the post-partum unit cleaner job remained part of the Application. This was also a failure of the employer to consider accommodation. At that time, the NYGH did not do the necessary balancing of interests, but simply withdrew the opportunity. In the alternative, the applicant stated that the incident was relevant as similar fact evidence, as an example of the employer withdrawing an opportunity based on the mere prospect of having to accommodate the applicant.

22The applicant also submitted that he intended to raise systemic issues of accommodation in the workplace. He intended to introduce evidence from other employees with similar experiences. He submitted that at the root of his case was a workplace culture and workplace norms that adversely impact employees with disabilities.

Amending the Application

23The applicant has raised new allegations of systemic discrimination against similarly situated persons. For the reasons set out here, I have concluded that it is not appropriate to allow the applicant to expand the scope of the Application through amendments to it.

24The Tribunal's Rules provide as follows:

6.2. A complete Application ... must set out all the facts that form the substance of the allegations of discrimination including the circumstances of what happened, where and when it happened, and the names of person(s) or organization(s) alleged to have violated the Applicant's rights under the Code.

25The Tribunal has permitted amendments to applications, taking into account the stage at which the request to amend is made, the nature of the amendment and the absence of any apparent prejudice. See Dube v. Canadian Career College, 2008 HRTO 336 and B.M. v. Cambridge (City), 2009 HRTO 954.

26In Odell v. Toronto Transit Commission, 2001 CanLII 26210, the then Human Rights Board of Inquiry set out the following questions to be asked when assessing new allegations (at para. 11):

Do the allegations form part of the continuum of facts of the Application?

Would an amendment to the complaint to include these allegations be appropriate?

Do the allegations provide a useful context for considering the legal issues?

27Proposed amendments to an application that elaborate or clarify allegations in the original application as filed are generally permissible: Kaiter v. York University, 2009 HRTO 1489 at para. 18. Such clarifications form part of the continuum of facts of the application. However, the proposed amendments to this Application are not an elaboration of the original Application. Instead, the amendments raise systemic allegations not contained in the original Application. The request for a systemic remedy in the original Application is not a fact relating to the substance of the allegations.

28In Odell, the Board of Inquiry set out the following useful criteria for determining whether to exercise discretion to amend an Application:

• Will the amendments cause actual prejudice to the other party;
• Fairness;
• The conduct of the party seeking the amendment; and
• The impact of the proposed amendment on the course of the hearing.

29In this case, it is not fair to the respondents to require them to defend vague allegations of systemic discrimination at this late stage of the proceedings. Given the timing of the applicant's request, it is reasonable to conclude that the respondents would be prejudiced by the amendment of the Application at this late stage. There is no indication that a consideration of these allegations is necessary to the fair, just and expeditious resolution of the Application. To expand the Application at this late stage would unduly lengthen and complicate the proceedings and would not address the fundamental issue in this Application: whether the applicant was appropriately accommodated. The additional allegations do not provide a useful context for considering the legal issues raised in the original Application.

30Accordingly, I decline to exercise my discretion to amend the Application.

The January 2008 allegation and allegations of harassment

31The applicant has alleged in his Application that he was not provided a position in the post-partum unit because of his gender. He has not alleged discrimination on the basis of sex. The applicant alleges that the event is related to the September 2009 event because it demonstrates a failure to accommodate. The applicant has also raised allegations of harassment from his co-workers.

32The allegations have not been raised within the one-year period required by section 34 of the Code. As stated by the Tribunal in Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241, "the Code requires an individual to act with all due diligence, and file their application within one year, when they may seek to pursue a human rights claim." When filing outside this one year time limit, the applicant must provide the Tribunal with an explanation as to why he did not pursue his rights under Code in a timely manner.

33The January 2008 allegation is untimely. It cannot be considered to be part of a continuous series of events. The alleged failure to accommodate was not an alleged failure to accommodate on the basis of his disability but was an alleged failure to accommodate on the basis of sex. The applicant submits that this incident is similar fact evidence. As noted in the recent decision of Wright v. Dhawon 2012 HRTO 103 at para. 37, "similar fact evidence may extend to evidence relating to other incidents of alleged discrimination on the same ground as alleged in the application" (emphasis added). The applicant has not sought to amend his Application to include sex as a ground of discrimination. This incident cannot be regarded as similar fact evidence. Accordingly, the allegation relating to the post-partum unit is dismissed.

34The applicant has conceded that his allegations of harassment are untimely. He has provided no reason for the delay in raising these allegations. This is sufficient to dismiss the allegations of harassment.

35Accordingly, the allegation relating to the January 2008 incident and the allegations of harassment are dismissed.

Additional witnesses proposed by applicant

36Rule 17.4 of the Tribunal states:

No party may present a witness whose name and summary of evidence was not included in a witness list and delivered and filed in accordance with Rules 17.1 and 17.2 or present an expert witness if material has not been delivered and filed in accordance with Rule 17.3, except with the permission of the Tribunal.

37The applicant is clearly late in filing witness statements and in fact has not filed statements for three of his proposed witnesses. It is not even clear that the applicant can locate the other three witnesses. The intended testimony of all four witnesses is not relevant because it will relate solely to their experiences of accommodation in the workplace and will not relate to the experience of the applicant.

38Accordingly, the applicant is not permitted to call the four witnesses identified in his September 30, 2011 RFOP, in accordance with Rule 17.4.

Reasonable Prospect of Success as against SEIU

39The SEIU requested that the Application against it be dismissed because it did not demonstrate a prima facie case of discrimination. It made this request in its Response to the Application, filed with the HRTO on January 22, 2010, and in an RFOP filed with the HRTO on April 26, 2010. The applicant did not respond to the RFOP until September 29, 2011.

40The SEIU submitted that the original Application contained no allegations that SEIU did anything or refused to do anything based on a prohibited ground of discrimination under the Code. The only allegation contained in the Application is the failure to file a grievance. In the alternative, SEIU argued that the allegations relate to its representation of the applicant and such allegations are within the sole jurisdiction of the Ontario Labour Relations Board.

41The allegation contained in the Application is that the SEIU representatives refused to file a grievance on his behalf. In his further submissions at the hearing, the applicant alleges that he was told by union representatives that he should not apply for positions where he was not capable of performing those duties. In effect, the applicant is alleging that SEIU told him not to apply for jobs where accommodation was required.

42The SEIU denies this allegation. It submits that the new allegation is untimely.

43A mere failure to file a grievance will generally not support a finding of discrimination. There must be a claim, and a factual foundation for the claim, that the failure to act was based on discriminatory factors: Traversy v. Mississauga Professional Firefighters' Association 2009 HRTO 996 at para. 33. As worded in the original Application, the allegation relating to the SEIU has no reasonable prospect of success.

44The new allegation that SEIU representatives stated that the applicant should not apply for jobs where accommodation was required is a fundamentally different allegation. This allegation, if proven, could demonstrate a discriminatory act on the part of the SEIU. I therefore need to determine if it is appropriate to allow the applicant to amend his Application to include this new allegation against SEIU.

45Testimony on the alleged comments will not significantly affect the course of the hearing or the length of the hearing. Although the delay in raising the allegation is significant, the SEIU has not demonstrated significant prejudice. The SEIU stated that its witnesses would deny the allegation. There is therefore not a concern about fading memories. There are no disclosure issues because there is no suggestion that documents are available to prove or disprove the allegation.

46I will therefore accept the amendment of the Application to include this allegation against SEIU. Accordingly, it cannot be said that there is no reasonable prospect of success of the amended Application, as against SEIU. It is important to note that I have not heard evidence and have reached no conclusions on the merits of the allegation.

Request of NYGH for disclosure of medical information and further particulars

47The NYGH has asked for particulars of medical restrictions that applied at all material times (2008 to 2011) as well as the production of medical reports and clinical notes that support such restrictions. It has also asked for further particulars with regards to the filing of letters from WSIB by the applicant. In particular, it wanted an explanation as to why the applicant was relying on these documents and the extent to which the applicant intended to link the WSIB proceeding to this Application.

48The applicant submitted that it was not appropriate for the respondent NYGH to now argue that based on his restrictions it could not accommodate him, when it never asked for information on the restrictions at the time.

49The applicant submits that the employer states in the WSIB letters that it has accommodated the applicant's restrictions but at the same time is taking the position that the injury never occurred. This is relevant to the bona fides of the efforts to accommodate the applicant.

50The request for further particulars on medical restrictions is appropriate as it may assist the adjudicator in determining whether the applicant fully disclosed his accommodation needs. The request for disclosure of medical records and clinical notes, if they exist, is arguably relevant. Accordingly, these documents are to be disclosed prior to the continuation of the hearing.

51It is premature to rule on the admissibility of the WSIB letters. The applicant will have to provide a factual foundation for their relevance at the continuation of the hearing, through his evidence.

52The Tribunal makes the following orders:

a. The request to amend the Application to include allegations of systemic discrimination through informal work rules is dismissed;

b. The allegations relating to the January 2008 incident and harassment are dismissed;

c. The additional witnesses proposed by the applicant will not be permitted to testify;

d. The Application is amended to include the allegation that SEIU representatives discouraged the applicant from applying for positions that required accommodation;

e. The request to dismiss the Application as against the SEIU is dismissed; and

f. The request of NYGH for disclosure of medical information and further particulars is allowed.

53Hearing dates for the continuation of the hearing will be scheduled by the Registrar.

54I am not seized.