RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Sandra Cristiano
Applicant
-and-
Grand National Apparel Inc.
Respondent
DECISION
Adjudicator: David Muir
Indexed as: Cristiano v. Grand National Apparel Inc.
APPEARANCES
Sandra Cristiano, Applicant ) Self-represented
Grand National Apparel Inc., Respondent ) Katherine Ford, Counsel
1This is an Application made under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (“the Code”), dated February 2, 2011. The applicant alleges that she experienced discrimination in employment because of disability and reprisal contrary to ss. 5, 8 and 9 of the Code, arising out of her employment and the termination of her employment with the respondent company.
2In this case, the applicant was terminated from her employment with the respondent employer following or during a medical leave of absence from work. The dispute between the parties centred on the request of the respondent employer for additional information related to the medical leave of absence. The respondent characterizes their request as bona fide and necessary so that it could plan for the leave of absence. Whereas, the applicant characterised the repeated requests made by the employer as harassment as defined in the Code. Upon her return from the medical leave of absence the applicant was terminated for reasons found in another proceeding to be unrelated to her medical issues (see discussion below).
3In an Interim Decision, 2012 HRTO 627, the Tribunal directed that the parties address as a preliminary issue whether the Application should be dismissed, in whole or in part, because its substance was appropriately dealt with in another proceeding, specifically, a claim for termination and severance pay under the Employment Standards Act, 2000, S.O. 2000, c.41 (“ESA”). At a hearing on April 2, 2012, the parties made submissions on this point. Having considered these submissions, I concluded that the Application ought to be dismissed, in part, at the hearing. My reasons, delivered orally at the hearing, are set out below:
In my view, the question of why the applicant was dismissed from her employment was at the heart of what the claim was about. The employment standards officer (“ESO”) heard from the parties and determined this issue. The ESO determined in a lengthy decision, which set out the basis for her decision, that the reason for the termination was that the applicant had engaged in wilful misconduct and for no other reason. In doing so the ESO also commented that the applicant had been treated fairly throughout.
The applicant states that the ESA complaint process was not a proceeding within the meaning of section 45.1. The applicant’s position is that she did not have an opportunity to review the documents that the respondent alleged that she had deleted from her computer and that apparently the ESO did not have them either. The applicant also states that it was not a proceeding like the one that would take place before the Tribunal.
It is well established that a claim and a determination by an ESO is a “proceeding” within the meaning of section 45.1 of the Code. See for example Pinheiro v. Maritz Canada, 2012 HRTO 540, Okoduwa v. Husky Injection Molding Systems Ltd., 2012 HRTO 443, and Rampersaud v. Primary Response Inc., 2011 HRTO 2172It is also clear that the question before the ESO was the same or substantially the same question as one of the issues before me – what were the reasons for the applicant’s termination. It also appears, based on a review of the ESO’s decision that the same arguments were made before her as will be made in this proceeding.
In my view these factors taken together are sufficient to meet the requirements of section 45.1 as now interpreted by the Supreme Court of Canada in its recent decision in Figliola.
Having concluded that the ESO had dealt with the reasons for the termination of the applicant’s employment it remains to determine whether there are any further issues raised in the Application that were not dealt with in the other proceeding. I find that there is one.
In my view the Application contains two broad allegations. One, that the applicant was terminated because the employer was unhappy with her having taken a leave of absence allegedly for medical reasons. That aspect of the claim has been dealt with for the reasons set out above.
However the applicant also alleges that the respondent “continually called and couriered letters” to her requiring further medical “details” or he would fire her. These allegations if proved are capable of supporting a finding that the Code has been violated by the respondent. I appreciate the fact that the ESO stated in her findings of fact that the respondent had treated the applicant fairly throughout her employment and her leave, however the ESO had no jurisdiction to determine whether or not the applicant had been treated fairly or in accordance with the requirements of the Code while on her leave of absence. In the language of the law, her comments in this regard would be considered obiter. In my view section 45.1 does not apply to this aspect of the Application because there was no other proceeding which could have dealt with it, appropriately or otherwise.
4Given my ruling that one aspect of the Application could proceed, I then heard the evidence of the applicant on this remaining issue. The respondent elected to call no evidence and relied on the evidence of the applicant as well as the documents exchanged between the parties during the applicant’s leave.
5The respondent takes two positions. First, it states that there is insufficient evidence to establish that the applicant was a person with a disability at the material times. Indeed, the respondent states that the reason it repeatedly requested information from the applicant was because she had failed to provide it with adequate information. Second, the respondent states that the correspondence with the applicant during her leave was entirely reasonable. It was intended to elicit information to which it was entitled. The respondent states, that it did not ask for a medical diagnosis, but only asked for information related to the extent of her incapacity, the restrictions, if any, on the applicant’s ability to perform the essential duties of her employment and a prognosis.
6The applicant stated that she was concentrating on getting better and found the repeated requests for medical information harassing. The applicant stated that she had worked for the respondent for 10 years and had never taken a leave of any kind. The applicant also stated that no one called her to ask her how she was feeling while on her leave.
DECISION
7The Application is dismissed. While the applicant evidently feels that she was treated unfairly by the respondent while on her leave, the Tribunal does not have any power to remedy general allegations of unfair treatment. The issue before me is whether the requests for information from the respondent constituted “harassment”, as defined under the Code.
8“Harassment” is defined in the Code as a course of vexatious conduct or conduct that is known or ought reasonably have been known to be unwelcome. I have concluded that the respondent’s conduct in this case was not harassment as defined in the Code.
9The applicant was absent from her work on October 5 and 6, 2010. The applicant may have reported for work on October 7, but appears to have left for the day. The applicant returned to work on October 12 and 13, 2010. On October 14, 2010, the applicant attended at the workplace solely for the purpose of dropping off a medical note from her family doctor which indicated that the applicant was “off work until further notice” and that she was “totally incapacitated”.
10The respondent sent a letter to the applicant on October 14, 2010, requesting further information from her. The material text of this letter is reproduced below:
whether it is your physician's opinion that you are totally disabled from performing the duties of your occupation;
if you are not totally disabled, what limitations, if any, are there on your ability to perform your duties;
the date your disability (if any) commenced; and
your prognosis for recovery and, particularly, your estimate of the date on which you will be able to return to work on a regular basis, both with and without limitations.
Please note that this information is needed so that we can make arrangements for your replacement during your period of leave, and so that we may fulfill our legal obligation of accommodating your disability, if one is present, to the extent possible. We will be placing great emphasis upon your physician's opinion.
11The respondent requested this information by October 22, 2010.
12The applicant wrote to the respondent on October 22, 2010. The text of the letter is as follows:
In reference to your letter dated October 14^th^, 2010, regarding my leave of absence from Grand National Apparel Inc.
I have been referred to a Specialist which I will be seeing on November 15th, to further evaluate my medical condition.
At that time the Specialist will be able to provide details of my condition and my return to work date.
Take note all expenses incurred for your requests for doctor's notes will be charged to Grand National Apparel Inc, including any legal fees that arise from not being able to respond personally to your letters.
As of today, I have not received the Record of Employment for my leave and require this document immediately as advised by Employment Standards, The Labour Board of Canada and The Human Rights Commission.
13On October 25, 2010, the respondent wrote to the applicant acknowledging receipt of the letter above and indicating that the respondent would await the receipt of the information from the applicant’s medical specialist. The respondent asked that the information be provided immediately after the appointment with the specialist. The respondent agreed to pay any costs associated with the specialist’s report.
14On November 17, 2010, the respondent wrote to the applicant requesting the medical information from the medical specialist that the applicant had indicated would be forthcoming. On the same date, the applicant wrote back and indicated that the information requested was “personal and private” and would not be provided until after her family doctor further evaluated her. At the same time, the applicant provided a brief medical note from her family doctor which indicated again that the applicant was “completely incapacitated” and “off work for medical reasons” and would be reassessed on December 20, 2010.
15In response, the respondent wrote to the applicant on November 22, 2010, reminding the applicant that she had an obligation to provide the information requested in the October 14, 2010 letter. The letter did state as well that if the information was not provided by December 22, 2010, the applicant would be considered to be on an unauthorized leave of absence.
16The applicant did not respond to this latest letter by the deadline provided by the respondent. On December 22, 2010, the respondent wrote to the applicant again advising her that if she did not provide the medical information requested, she would be deemed to have abandoned her position.
17On January 4, 2011, the applicant provided a brief medical note from her family doctor which indicated only that the applicant would be returning to work on January 31, 2011. The applicant returned to the workplace on January 31, 2011, but her employment was terminated at that stage for the reasons found by the ESO to be issues of misconduct unrelated to the medical leave.
18The respondent states that it was entitled to the information requested on October 14, 2010, and never in fact received it. Repeating this request several times, given the respondent was entitled to the information, cannot be considered vexations or reasonably perceived as being unwelcome. I agree with this submission.
19Assuming, without deciding, that the applicant was a person with a disability at the time, I find that the respondent was entitled to the information requested in the letter of October 14, 2011. This is particularly so given the very limited information that was provided by the applicant at that time. I would note that the information provided by the applicant was not particularly helpful, and indeed, seemingly contradictory, given the manner in which it was delivered to the respondent. While the brief medical note she provided indicated that the applicant was “totally incapacitated”, the applicant was nonetheless capable of delivering the note to the respondent, at work, by hand. In any event, the information provided to the respondent was inadequate. It provided no detail at all. It also provided no indication of how long the applicant would be absent from the workplace.
20The applicant stated both to the respondent at the time and at the hearing that her particular medical condition was personal and private and would not be disclosed. There are limits on what a respondent can require of its employees claiming a need for a medical leave. For example, in most instances, an employer is not entitled to a diagnosis. But an employer is entitled to know enough to make some assessment of the bona fides of the leave request and sufficient information to determine what if any accommodations might be made to return their employee to the workplace, and if that is not possible, some estimate of how long the employee is expected to be absent. See, Baber v. York Region District School Board, 2011 HRTO 213, and Jeffrey v. Dofasco, 2004 HRTO 5. The medical information provided by the applicant in this case provided none of this required information.
21I find that the requests of the respondent were reasonable. The respondent was entitled to the information requested and only repeated the requests as the applicant never provided the information it was seeking.
22For all of these reasons, I find that the requests made of the applicant to provide further information were not unreasonable and accordingly could not reasonably have been seen as unwelcome. The respondent was not harassing the applicant.
23Neither party expressly addressed the reprisal issue in their submissions. I find that that there is no evidence that the respondent engaged in any conduct that could reasonably be understood to be a reprisal. The applicant does allege that the respondent threatened to terminate her employment if she did not provide it with the information it was requesting. It follows from my conclusions on the section 45. 1 issue above that the reasons for the applicant’s dismissal are not matters that I can deal with. As regards the threat of dismissal, for the same reasons that I have concluded that the respondent was not harassing the applicant, I cannot conclude that the respondent warning the applicant of the potential consequences of her failure to provide reasonably required medical information does not in these circumstances constitute a reprisal under section 8 of the Code.
24For all of these reasons the Application is dismissed.
Dated at Toronto, this 16^th^ day of May, 2012.
“Signed by”
David Muir
Vice-chair```