Barry v. St. Michael’s Hospital, 2012 HRTO 632

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Florence Barry Applicant

-and-

St. Michael’s Hospital and Tasha Osborne Respondents

INTERIM DECISION

Adjudicator: Douglas Sanderson Date: March 28, 2012 Citation: 2012 HRTO 632 Indexed as: Barry v. St. Michael’s Hospital

APPEARANCES BY

Florence Barry, Applicant ) Paulette Haynes, Counsel St. Michael’s Hospital and ) Hadiya Roderique, Counsel Tasha Osborne, Respondents )

Interim Decision

1The applicant filed an Application on March 26, 2010 under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment on the basis of race, colour, disability and age.

2The Application alleges that the respondents subjected the applicant to unfair treatment with respect to a patient complaint and required the applicant to undertake a mandatory Health Assessment Course, which eventually led to the applicant feeling compelled to retire from her employment with the organizational respondent. The applicant alleges that when she sought to revoke her retirement, the respondents placed her on an unpaid leave of absence. The applicant further alleges that the respondents have treated her unfairly with respect to her accommodation needs.

Summary Hearings

3By Case Assessment Direction (“CAD”) dated May 19, 2011, the Tribunal ordered a Summary Hearing to determine whether the Application should be dismissed because there is no reasonable prospect that it will succeed. The hearing was held on December 21, 2011.

4The summary hearing process is described in Rule 19A of the Tribunal’s Rules of Procedure. In Dabic v. Windsor Police Service, 2010 HRTO 1994, at paras. 8-10, the Tribunal made the following observations on the type of inquiry that may be involved in a summary hearing:

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.

Submissions

Patient Complaint and Health Assessment Course

5The applicant submitted that in or about April 2009, Ms. Osborne, the individual respondent, brought a patient complaint to her attention that dated back to 2007. The patient complained that he experienced chest pain of which he informed hospital staff, but no action was taken to address his condition for a prolonged period. The applicant explained that she had seen the patient, but was not present when he complained of chest pain and was therefore unaware of the situation. The applicant submitted that Ms. Osborne knew the applicant was not the person to whom the patient complained. Nonetheless, Ms. Osborne required the applicant to participate in a remedial learning plan, which included taking a Health Assessment Course. The applicant submitted that Ms. Osborne has unfairly accused other black employees of performance concerns and would produce witnesses to this pattern of discrimination.

6The applicant also submitted that the remedial learning plan and Health Assessment Course was part of a strategy to terminate the applicant’s employment because of age. The applicant injured her shoulder in mid-August 2009 and was off of work until September 15, 2009. The applicant submitted that, although she thought the Health Assessment Course was unnecessary, she was prepared to take the course when she was fit to do so. The respondents, however, insisted that she take the course in September 2009. The applicant, accompanied by a union representative, attended a return to work meeting on September 14, 2009, conducted by Ms. Osborne and a Human Resources Advisor. Ms. Osborne continued to insist that the applicant immediately enroll in a Health Assessment Course. The applicant submitted that she capitulated to the pressure Ms. Osborne brought to bear on her and stated she wished to retire. The applicant felt forced to retire and later rescinded her retirement. The applicant contends that other, younger, employees were not faced with termination of employment when required to take training courses.

7The applicant’s expected retirement date was January 15, 2010. Shortly before that date, she revoked her retirement, but the respondents took the position that she could not return to work until she completed the Health Assessment Course. The respondent placed the applicant on unpaid leave and informed her that the respondent would consider her to have resigned her employment if she did not take the course by March 30, 2010.

8The respondent’s submitted that a mix up in dates explained the delay in bringing the patient’s complaint to the applicant’s attention. The respondents concluded that the applicant did not provide adequate care to the patient; therefore, they gave her a warning and required her to complete a learning plan, which included taking a Health Assessment Course in September 2009. The respondents stated that it is common to require nurses to take a Health Assessment Course after making a significant error.

9The applicant resisted taking the course and she never registered for it, despite Ms. Osborne’s insistence. At the return to work meeting, Ms. Osborne reiterated that the Health Assessment Course was required. The applicant stated her restrictions prevented her from taking the course, which Ms. Osborne replied was not consistent with her restrictions. The union representative stated that the applicant wished to retire within a year. Ms. Osborne stated that she would nonetheless have to take the course, but she was prepared to waive the requirement if the applicant retired prior to December 21, 2009. The parties ultimately agreed that the applicant would retire on January 15, 2010 and would not have to take the Health Assessment Course. The applicant rescinded her retirement and Ms. Osborne informed her that the hospital was no longer waiving the requirement to take the course. Ms. Osborne further informed her that the hospital placed her on unpaid leave of absence until March 30, 2010. If she did not take the course by that date, the respondents would consider her to have resigned her employment.

10The respondents submitted that the applicant’s allegations regarding the requirement to take the Health Assessment Course amount to allegations of general unfairness without connection to a prohibited ground of discrimination. They further stated that other nurses have been required to take the Health Assessment Course and the applicant referred to no evidence that she could not take the course. Finally, the respondents submitted that the applicant’s allegations amount to bald assertions, not evidence of violations of the Code.

Disability

11The applicant submitted that she injured her shoulder on or about August 13, 2009. The applicant submitted that her evidence would be that Ms. Osborne initially refused to give the applicant modified work because it was not possible to accommodate nurses on the night shift. Ms. Osborne did not explore assigning the applicant to the day shift for modified duties, although other nurses, who were not black, had been put on day shift to be accommodated. Ms. Osborne was well aware of the applicant’s restrictions, but declined to accommodate her to put her off of work. The respondents eventually accommodated her by putting her on the day shift on September 15, 2009.

12The respondents submitted that they could not accommodate the applicant’s restrictions on the night shift. The applicant declined to meet with the respondents in August 2009 to discuss accommodation and representatives from the applicant’s union were not immediately available, which delayed consideration of the subject. The medical information submitted by the applicant also stated that she was totally disabled from September 2 to 9, 2009 and therefore unable to perform even modified duties. The applicant returned to work the next week on modified duties. The applicant received sick pay during her absence, which in the circumstances was reasonable accommodation. The respondents submitted that no facts support the allegation that the respondents failed to accommodate the applicant. Rather, the respondent submitted that the facts presented by the applicant actually indicate that she was accommodated properly.

13In reply submissions, the applicant noted the parties’ submissions revealed a dispute about the facts that required a merits hearing to resolve. The applicant denied that she refused to attend a meeting in August 2009 regarding accommodation or that her allegations were mere bald assertions. Rather, the applicant demonstrated that she would be able to adduce evidence that other black employees shared similar experiences of discrimination.

Analysis and Decision

14At the summary hearing stage, an applicant is required to point to evidence that she has or is reasonably available to her that could show a link between the respondents’ actions and the alleged prohibited grounds of discrimination. The applicant is required only to describe what her evidence would be and the Tribunal does not evaluate or weigh evidence. Neither does the Tribunal consider respondents’ evidence that would contradict the applicant’s allegations or make findings of fact.

15The applicant pointed to evidence that the respondents singled out black employees for remedial action, the respondents denied her reasonable accommodation (that was provided to non-black nurses) and that younger employees were not faced with termination of employment when required to take a Health Assessment Course. In my view, such evidence would link the respondents’ actions to alleged Code grounds; therefore, I cannot find that the Application has no reasonable prospect of success. Of course, the determination that the Application can continue is not an indication that the Application will be successful, but I agree with the applicant that a merits hearing is required.

16The Application shall be returned to the Registrar’s Office for processing.