HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Christopher Harper
Applicant
- and-
The Corporation of the County of Simcoe
Respondent
decision
Adjudicator: Brian Cook
Indexed as: Harper v. Simcoe (County)
APPEARANCES
Christopher Harper, Applicant ) Self-represented
The Corporation of the County of Simcoe, ) Philip Wolfenden, Counsel
Respondent )
Introduction
1This is an Application filed on May 30, 2011 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 grounds of disability and reprisal.
2By Case Assessment Direction dated November 8, 2011, the Tribunal ordered a Summary Hearing pursuant to Rule 19A of the Tribunal’s Rules of Procedure. The issue in a summary hearing is whether the application should be dismissed in whole or in part because there is no reasonable prospect that it will succeed. The Case Assessment Direction also directed that the issue of whether the Application was filed in time would also be determined at the Summary Hearing. The Summary Hearing was conducted by telephone conference call on March 23, 2012.
Decision
3For the reasons which follow I find that the Application should be dismissed because there is no reasonable prospect that it will succeed.
Background
4The applicant started his employment with the respondent in January 2004. He was hired as a Property Manager and in 2006 became a Real Estate and Facilities Manager. The applicant resigned his employment in February 2011.
5Prior to starting this employment the applicant had surgery on his right ear that resulted in some hearing loss in the right ear and meant that he was more susceptible to ear infection and suffered from occasional inner ear related balance problems. The balance problems occasionally required him to use a cane.
6The applicant alleges that he was subject to harassment and discrimination by his immediate supervisor. He alleges that she treated him unfairly, blamed him for things that were not his fault, refused to recognize his accomplishments, and used inappropriate and threatening language.
7If these allegations are true they do not, in themselves, raise anything that is connected to the Code or the applicant’s Code-protected rights. The Code applies only to the specific grounds set out in the Code and does not cover all allegations of unfair treatment. The Application alleged that the supervisor’s behaviour was influenced by and connected to his disability. The applicant was asked to explain this connection at the Hearing.
8The applicant indicated that in his view, the problems started at a meeting that took place in 2006 when long-term care facility managers were complaining to the supervisor that various things had not been done. At the meeting, the supervisor allegedly identified the applicant’s heavy workload as the cause of the problems. The applicant did not agree that the problems were his fault. He did agree that he had a heavy workload and he had also missed some time from work due to illness but did not agree that this was the cause of the problems identified by the long-term care facility managers.
9The applicant alleges that after this meeting the supervisor asked him if he required any accommodation in regard to his ear condition. He advised that he did not require any accommodation.
10At the Hearing the applicant indicated that in his view the supervisor wanted him to request accommodation so that she would in the future have an excuse for anything that the department failed to do. In his view, the supervisor’s subsequent harassment of him was related to his saying that he did not require accommodation. He also alleges that the supervisor’s behaviour was in reprisal for his not asking for accommodation.
11Sometime after the meeting, the applicant was called to a meeting with the respondent’s Director of Human Resources. The applicant alleges that at this meeting the Director of Human Resources indicated that his son had a disability and the applicant believes that this was an allusion to the applicant’s disability or perhaps a perceived disability. The applicant indicated that his disability did not otherwise come up in the meeting.
12The applicant also agrees that the issue of whether he needed any accommodation never came up again during his employment.
13The applicant alleges that he experienced harassment and discrimination on the basis of disability on some occasions related to annual staff functions. One of these was an event that involved riding horses. The applicant alleges that the supervisor should have been aware that this might not have been a suitable activity for him because of his balance issues. However, he agrees that he participated in the event and did not specifically raise his concerns with anyone. On another occasion, the event involved a cooking and eating event. The applicant had a long-standing issue related to his stomach and feels that this should have been taken into account when the event was organized. He agrees that he did not specifically raise any concerns at the time.
14In July 2010, the applicant was off work on a sick leave that lasted for three weeks. The respondent “backfilled” his position, meaning that the position was posted as a temporary position. The posting process took two weeks. His assistant applied and was selected. She did the job for four days until he returned.
15The applicant alleges that this was discriminatory because it is not normal practice to backfill a position when an employee is off for only three weeks.
16The respondent submits that it was not aware that the applicant would be away for only three weeks and thought that it would be a longer leave.
Analysis
17Section 34 of the Code provides as follows:
- (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.
18The issues I have to decide are:
whether the Application was filed within one year of the last incident to which the Application relates,
If not, is there a good faith explanation for the delay and will substantial prejudice result to any person
Even if the Application is timely, is there no reasonable prospect that the Application will succeed in whole or in part.
19The allegations about the meeting in 2006 and the events immediately after that meeting occurred more than one year before the Application was filed on May 30, 2011. The applicant’s explanation for the delay is that it was not clear to him until subsequent events that he had experienced discrimination.
20The applicant also alleges that subsequent to 2006 he was subject to continuing harassment by the supervisor, which he believes was motivated in part as reprisal for the events in 2006. This harassment continued to February 2011 when he resigned his employment. In effect, the applicant alleges a “series of incidents” of continuing harassment or reprisal which are all connected to the fact that he did not require accommodation when asked in 2006. As discussed below, I find it unnecessary to make a finding on this issue as I have concluded that in any event there is no reasonable prospect for success.
21The test on a summary hearing is whether the application should be dismissed on the basis that there is no reasonable prospect for success. As discussed by the Tribunal in Dabic v. Windsor Police Service, 2010 HRTO 1994 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.
22In my view, the applicant’s theory that he was subject to continuing reprisal for failing to ask for accommodation in 2006 is quite implausible. There is no evidence to support it and the applicant was unable to suggest any evidence that might establish a link between being asked in 2006 if he required accommodation and the subsequent alleged harassment by the supervisor. The applicant agrees that the subject of accommodation never came up again in the ensuring five years. I am satisfied that there is no reasonable prospect that this aspect of the Application could succeed because there is no reasonable prospect that the applicant could prove that the alleged ongoing harassment had anything to do with telling the supervisor that he did not require accommodation in 2006. .
23With respect to the allegations about the staff functions, the applicant agrees that he did not raise any concerns at the time. He attended the events in question and agreed that he might even have enjoyed himself at the time. In these circumstances it appears to me that there is no reasonable prospect that the applicant could establish a breach of the Code by the respondent in respect of these functions.
24I do not see how the fact that the respondent “back-filled” the applicant’s position while he was on a medical leave was discriminatory. While the applicant was only off work for three weeks, it does not appear that the respondent understood at the time that the leave would only be for three weeks. Even if the respondent did know that the leave would be for three weeks, it does not appear that the applicant was in any way disadvantaged. The posting was internal, given to his assistant, and lasted only four days. In addition, the respondent has provided the plausible explanation that it understood that the applicant was likely going to be off work for an extended period of time. The applicant does not dispute that it would not be unusual for the employer to backfill a position if it understood that an employee was going to be off work for an extended period.
25For all of these reasons, I find that there is no reasonable prospect that the Application could succeed and it is dismissed on that basis.
26In light of this finding, it is not necessary to determine if the Application should be dismissed because of delay.
Dated at Toronto, this 11th day of April, 2012.
“Signed by”
Brian Cook
Vice-chair