Loralie Bluett v. PwC Management Services LP, 2013 HRTO 1104

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Loralie Bluett

Applicant

-and-

PwC Management Services LP

Respondent

INTERIM DECISION

Adjudicator: Brian Cook

Date: June 20, 2013

Citation: 2013 HRTO 1104

Indexed as: Bluett v. PwC Management Services LP

APPEARANCES

Loralie Bluett, Applicant Self-represented

PwC Management Services LP, Respondent Kate Dearden, Counsel

INTRODUCTION

1This Application was filed on August 16, 2012, under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), and alleged discrimination with respect to employment because of disability.

2The Application was delivered to the respondent, which filed a Response. On March 18, 2013, the respondent filed a Request for Order During Proceedings asking the Tribunal to dismiss the Application on the grounds that it has no reasonable prospect of success.

3In a Case Assessment Direction dated March 27, 2013, the Tribunal directed a summary hearing by telephone conference call to determine if the Application should be dismissed as having no reasonable prospect of success.

4On May 30, 2013, the applicant filed a Request for Order During Proceedings seeking to add family status as a ground of alleged discrimination.

5The summary hearing was held by telephone conference call hearing on June 18, 2013. The issues included the respondent’s request for dismissal and the applicant’s request to amend the Application.

THE SUMMARY HEARING PROCESS

6The summary hearing process is outlined in Rule 19A of the Tribunal’s Rules of Procedure. In a summary hearing, the issue is whether the Application should be dismissed in whole or in part on the basis that there is no reasonable prospect that the Application or a part thereof will succeed.

7In Dabic v. Windsor Police Service, 2010 HRTO 1994, 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.

8The Tribunal does not hear evidence in a summary hearing. It instead hears what evidence the applicant expects to be able to call if the Application proceeds to a hearing on the merits. The Tribunal must then assess whether the evidence that the applicant proposes to call is likely to establish that the discrimination alleged occurred.

9In some cases, the evidence that the applicant proposes to call is her own testimony about what happened. After hearing this information, the Tribunal may determine that even if the applicant’s evidence is true, the applicant has not made out a case of discrimination and the Application may be dismissed on that basis. However, at the summary hearing stage the Tribunal does not generally assess whether the applicant’s testimony at a hearing will be found to be credible. Assessment of credibility is only done when evidence is heard and is subject to cross-examination by the respondent and questioning by the Tribunal. This does not occur in a summary hearing.

BACKGROUND

10The applicant started her employment with the respondent on June 14, 2010. At the hearing, the applicant said that she applied for employment with the respondent because it would allow her to work closer to home. This was important because her father was living in her home and she needed to provide care for him. She stated that she informed the respondent of this arrangement when she started her employment.

11The applicant states that she has a medical condition that makes her more susceptible to infection. During the course of her employment, she lost time from work due to infection and to the underlying condition. She also lost time from work to care for her father and to take him to medical appointments.

12In 2012, the applicant had verbal and email communication with her employer about formalizing an arrangement that would allow her to work from home one day a week. According to the Response, the respondent supported the applicant's desire to work from home for personal reasons and that in or around May 2012, the applicant was permitted to work from home one day per week.

13The applicant's employment was terminated by the respondent on July 10, 2012 on a “without cause” basis. The respondent asserts that the termination was part of a major restructuring affecting its operations across Canada. The restructuring resulted in the termination of sixteen employees in the department where the applicant was employed and over 100 employees across Canada.

14The Response indicates that the applicant's “quality of work” was a factor in the decision to terminate the applicant's employment and that “issues related to quality, particularly with respect to attention to detail and accuracy” had been identified. However, the termination was on a without cause basis. The respondent asserts that the decision to terminate the applicant’s employment had nothing to do with the time she took off due to either her own illnesses or care for her father.

15With respect to the applicant's illness, the respondent asserts that while it was of course aware that the applicant required time off work for medical reasons, it was not aware that the applicant had any underlying condition or that she had a “disability” as that term is defined in the Code.

REQUEST TO AMEND THE APPLICATION

16In considering requests to amend Applications the Tribunal generally considers the nature of the proposed amendments, the reasons for the amendment, the timing of the request to amend and the prejudice to the respondent. See Dube v. Canadian Career College, 2008 HRTO 336; Wozenilek v. 7-Eleven Canada Inc., 2009 HRTO 926; and Dunford v. Holiday Ford Sales, 2009 HRTO 1563.

17At the hearing, the applicant said that she had not identified family status as a ground of alleged discrimination at the time of the original Application because she had not understood that this ground could apply to her situation. She has since obtained some legal advice and now understands that the ground of family status may apply in her case.

18The respondent opposes the request to amend the Application. The respondent asserts that the narrative that the applicant has provided in support of her request to amend the Application relates to events that occurred more than one year before the Application was filed and that the allegations about family status are not timely. The respondent also asserts that the request would significantly expand the scope of the allegations. The respondent claims that it would be unfair to allow the applicant to amend the Application at this stage of the processing and notes that the applicant did not file the request to amend the Application until seven months after the original Application was filed and that the request was filed only a few weeks before the scheduled summary hearing.

19The applicant’s allegation is that the time she was taking off work and her request to work at home were factors in the respondent’s decision to terminate her employment. The lost time from work was because of her illnesses and the need to provide care for her father. The respondent says that it fully accommodated the applicant with respect to sick time and allowed her to work at home.

20It does not appear to me that the request to add family status as a ground of discrimination significantly expands the scope of the issues or the nature of the allegations. Nor does it seem to add anything that the respondents were not already fully aware of.

21The allegations relating to family status relate to events more than one year before the Application was filed but it appears that this is only in regard to the fact that the applicant wanted the job with the respondent so as to be nearer to her home and her father. She does not appear to allege discriminatory events because of family status in the time prior to one year before the Application was filed.

22The request to amend the Application is made after the initial pleadings have been filed but before the parties are required to disclose documents or prepare for a hearing on the merits.

23I will allow the applicant's request to amend the Application on the basis of family status.

CONCLUSIONS

24The test in a summary hearing is whether there is no reasonable prospect that that applicant will be able to prove the alleged discrimination if the matter were to proceed to a full hearing. At the summary hearing stage the applicant does not therefore have to prove that the alleged discrimination did occur. She only has to point to the evidence that she will have available to support her allegations.

25In this case, the applicant indicates that her evidence will be that there were ongoing concerns about her absences from work. She says that the absences from work were due to disability and to her care for her father.

26The applicant alleges that there are documents on the respondent’s internal email and data systems that will show that these concerns were ongoing and that they will support that these concerns were a factor in the decision to terminate her employment. She does not have access to these documents and at this stage has no ability to ask that they be produced.

27The respondent states that it supported the applicant’s request that she be allowed to work at home to be with her father and that her absences due to illness were not an issue. The respondent asserts that while it was aware that the applicant had illnesses from time to time, it was not aware that the applicant had a disability within the meaning of the Code. The respondent further asserts that the corporate restructuring provides a full and complete non-discriminatory explanation for the decision to terminate the applicant's employment. The respondent does however agree that there were some concerns about the applicant's work performance and that these concerns were a factor in the decision.

28The applicant may or may not be able to successfully prove that she has a disability within the meaning of the Code, and that this disability and/or family status issues related to her care for her father were factors that contributed to the decision to terminate her employment. I conclude that it cannot be said that there is no reasonable prospect that the applicant will be able to prove her allegations because it appears to me that a determination of these matters will require the Tribunal to hear and assess the evidence that the parties will adduce at a hearing.

ORDER

29The Tribunal will continue to process the Application. The respondent is directed to advise the Tribunal within two weeks of this Interim Decision if it wishes to engage in mediation at the Tribunal. If so, the Tribunal will schedule a mediation session at the Tribunal. If not, the Tribunal will continue with the processing of the Application and the scheduling of a hearing.