Bourque v. Sarnia (City), 2013 HRTO 1282

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Patricia Bourque

Applicant

-and-

The Corporation of the City of Sarnia

Respondent

INTERIM DECISION

Adjudicator: Eric Whist Date: July 23, 2013 Citation: 2013 HRTO 1282 Indexed as: Bourque v. Sarnia (City)

APPEARANCES

Patricia Bourque, Applicant

Jane Wogan, Todd Cook, Representative

The Corporation of the City of Sarnia, Respondent

Paula Rusak, Counsel

INTRODUCTION

1This is an Application filed on November 29, 2009, under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Application alleges discrimination with respect to employment on the basis of disability. The Application alleges that the respondent failed to accommodate the applicant’s disability during the period January 2006 to April 2009.

2The respondent filed a Request for an Order During Proceedings (RFOP) requesting that as a preliminary matter the Application be dismissed for delay pursuant to section 34 of the Code. Section 34 of the Code requires that an application be filed within one year of an alleged incident of discrimination or, if there is a series of alleged incidents of discrimination, within one year of the last incident of alleged discrimination.

3The respondent submits that applicant identifies incidents of alleged discrimination as occurring in February and March 2006 and March 2008 and as these incidents occurred more than one year prior to the filing of the Application in November 2009 they are untimely and the Application should be dismissed. In response the applicant submits that she was discriminated against not only in February and March 2006 and March 2008 but also in March/April 2009. She submits that as the last incident of discrimination occurred within one year of the filing of the Application it is timely and the earlier allegations should be considered to be part of a series of incidents of discrimination that make them timely as well.

4The Application was deferred in an Interim Decision dated January 19, 2011, 2011 HRTO 142, pending the outcome of appeals made by both the applicant and respondent to the Workplace Safety and Insurance Appeals Tribunal (“WSIAT”) of several decisions made by the Workplace Safety and Insurance Board (“WSIB”).

5In an Interim Decision dated December 10, 2012, 2012 HRTO 2314, the Tribunal granted the applicant’s request to re-activate her Application following a WSIAT decision dated November 1, 2012. The Tribunal further determined that a preliminary hearing would be held to consider the respondent’s request to dismiss the Application for delay. The preliminary hearing took place by teleconference on May 7, 2013.

6It is relevant to note that the WSIB was involved in efforts to return the applicant to work and that the applicant pursued a number of WSIB claims and appeals throughout the period 2006 to 2009 (and later). The parties disclosed documents related to the WSIB’s involvement in the applicant’s return to work and the applicant’s claims to the WSIB and WSIAT. I have only referred to the involvement of the WSIB as necessary for the purposes of my decision.

DECISION

7The Application is dismissed, in part. I find that there is an alleged incident of discrimination in March/April 2009 that is timely. I find that the March 2008 incident identified by the applicant cannot be considered as a potential incident of discrimination and therefore is not part of any series of incidents of alleged discrimination. I find that the alleged incidents of discrimination dating from 2006 do not form part of a series of incidents with the March/April 2009 incidents given that they occur three years earlier. They are dismissed as untimely.

CHRONOLOGY OF KEY EVENTS

8The applicant began working for the respondent in 1979 as a bus driver. In 2003 and 2004 she suffered workplace injuries to her back. After both injuries she returned to work and her regular duties on a graduated return to work basis. In September 2005 she injured her back and again was off work. The applicant did not return to work until May 13, 2009.

9On January 13, 2006, a WSIB claims adjudicator issued a decision in which he ruled that the applicant did not have a permanent impairment and she was capable of returning to her pre-injury job as a bus driver on a graduated return to work basis.

10The parties met on February 3, 2006, to discuss the applicant’s return to work. At the meeting the respondent took the position that the applicant was able to return to her pre-injury duties given that the WSIB’s claims adjudicator’s January 13, 2006 decision that there was no medical impediment to her doing so. The applicant disputed the WSIB claims adjudicator’s determination that she was fit to return to work on the basis that she was experiencing dizziness and blackouts caused by pain related to her workplace injury. The applicant submits the respondent ought to have offered her alternative modified employment because even though her dizziness and blackouts were not recognized by WSIB as work related they were nonetheless a condition the applicant was experiencing and which had been recognized by her doctor. The applicant further notes that her driver’s license had been suspended.

11The applicant alleges the position taken by the respondent at the February 3, 2006 meeting to not offer her modified work is an act of discrimination.

12On March 9, 2006, the WSIB claims adjudicator issued a decision confirming his opinion that the applicant was physically capable of returning to her pre-injury employment on a graduated return to work basis notwithstanding her reported dizzy spells and blackouts. The respondent subsequently wrote to the applicant on March 24, 2006 to state that, pursuant to the WSIB claims adjudicator’s decision, it was offering to return the applicant to her position as a bus driver on a graduated return to work basis (conditional on the applicant’s doctor providing medical authorization that it was safe for the applicant to return).

13The applicant alleges the respondent’s refusal to provide her with modified work as expressed in its March 24, 2006 letter is a further act of discrimination.

14The applicant has pursued a number of claims to the WSIB including a claim for chronic pain disability benefits arising from her workplace injuries. This claim was initially denied by a WSIB claims adjudicator on July 25, 2006 but the applicant appealed and following a hearing this claim was approved on November 30, 2007 by a WSIB Appeals Resolution Officer.

15The applicant disclosed a copy of a WSIB claims adjudicator’s memo to file dated March 11, 2008. The memo states that the adjudicator had been reviewing the Appeals Resolution Officer’s November 30, 2007 decision and had determined that this decision had not addressed the issue of the applicant’s loss of earnings related to the applicant’s chronic pain disability. The memo states that the claims adjudicator was in contact with the respondent and asked the respondent what, if any, modified work still existed for the applicant. The claims adjudicator records that the respondent advised that it would put together a report. It appears the respondent did not provide a report about available modified work to the adjudicator.

16The applicant alleges the respondent’s failure to provide documentation about possible modified work for the applicant in response to the WSIB’s March 11, 2008 request is an act of discrimination.

17On March 3, 2009, the respondent wrote to a WSIB claims adjudicator in response to questions from the claims adjudicator about the availability of modified work for the applicant. In this letter the respondent states that it had not previously offered the applicant modified work because of the January 13 and March 9, 2006 WSIB decisions that the applicant was fit to return to her pre-accident position.

18The respondent’s letter continues by identifying the type of modified work the respondent has provided to bus drivers in the past stating that this work would have been offered to the applicant previously if the WSIB had said the applicant was fit for modified work rather than her pre-injury position. The letter concludes by stating that by March 2-6 or March 9-13, 2013, the respondent would issue a letter offering the applicant modified work.

19In a letter dated March 30, 2009, the WSIB wrote to the applicant to state that, based on a review of the applicant’s physical conditions that it had determined the applicant was partially impaired but capable of returning to work under certain restrictions. The letter goes on to state that the first confirmation the applicant provided to the WSIB that she did not feel that she was totally impaired was in a letter dated January 21, 2009. The letter then states that the WSIB has been in contact with the respondent and the respondent had indicated that it was willing to return the applicant to suitable work and was currently revisiting this issue. The WSIB states it will provide the applicant with full ongoing Loss of Earnings from January 21, 2009.

20On April 8, 2009 the respondent formally offered the applicant a modified position that it understood was within the applicant’s restrictions, beginning April 27, 2009.

21The applicant alleges the respondent’s formal offer of modified work was only made to the applicant because of the WSIB’s March 30, 2009 decision to award the applicant full ongoing Loss of Earnings.

22The applicant alleges the respondent’s failure to formally offer the applicant modified work from March 3, 2009 until April 8, 2009 when a formal offer was made constitutes an act of discrimination.

23The applicant returned to work on May 13, 2009.

ANALYSIS

24Section 34(1) of the Code provides:

34(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.

34(2) A person may apply under subsection (1) after the expiry of the time limit under that section 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.

25The first issue to determine is whether there is an allegation of an incident of discrimination that takes place within one year of the filing of the Application.

26The respondent submits that there was no such incident in March and April 2009. The respondent submits while there may have been a delay in it formally offering the applicant modified work until April 8, 2009 there was no discriminatory act given it had already indicated in its March 3, 2009 letter that it was prepared to offer modified work to the applicant. However, the applicant’s contention is that regardless of any offer of modified work on March 3, 2009, the respondent’s formal offer of modified work on April 8, 2009 was only made because the WSIB rewarded the applicant full Loss of Earnings benefits on March 30, 2009. This is an allegation of discriminatory treatment and one which is timely under section 34 given that it occurs within one year of the Application which is filed in November 2009.

27The further issue is whether the applicant’s allegations arising from incidents in February and March 2006 and March 2008 are part of a series of incidents that include the March-April 2009 allegation that would make these earlier allegations also timely.

28In considering the meaning of the term “series of incidents” under s. 34(1)(b) of the Code, the Tribunal has adopted the following definition of the word “series”: “a number of things or events of the same class coming one after another in spatial or temporal succession”. See Pakarian v. Chen, 2010 HRTO 457.

29In considering the issue of the temporal connection between alleged incidents, the Tribunal has held that events are generally not part of a series of incidents if there is a break in the temporal connection between them.

30The Tribunal has found that generally a gap of more than one year between incidents constitutes a temporal break that interrupts a series of incidents. See for example Chintaman v. Toronto District School Board, 2009 HRTO 1225. This reflects the Code requirement that an individual act with due diligence by filing his or her application within one year of an alleged violation of the Code and the fact that a further alleged incident of discrimination occurs beyond that one year timeframe should not generally allow one to file an application in relation to the earlier untimely allegations unless the delay is incurred in good faith pursuant to section 34(2). As noted in Sutherland v. District School Board North Ontario East, 2010 HRTO 2270: “there is a clear legislative expression of intent in section 34 that human rights complaints ought to be brought expeditiously and that significant gaps in time between alleged incidents in a series will interrupt the series.”

31The alleged incidents of discrimination dating from February and March 2006 occur approximately three years before the timely allegation dating from March/April 2009. I find that given this significant gap in time the February and March 2006 incidents are not part of a series of incidents that would make them timely. While I recognize that the nature of the alleged incidents from 2006 are similar in nature to the 2009 incident in that they relate to the respondent refusing to offer modified duties to the applicant I find the fact that they occur three years apart is sufficient reason to find that they are not part of a series of incidents pursuant to section 34(1)(b).

32I note here that the applicant provided no explanation for why she did not file an Application in respect of the February and March 2006 incidents on a timely basis, that is within one year of these incidents occurring. Accordingly there is no need to consider whether or not there is a good faith explanation for the delay in acting on these allegations pursuant to section 34(2).

33The applicant submits that the respondent’s failure to respond to a request for information from the WSIB in March 2008 about what modified work it had available is an incident of discrimination and timely as it is part of the series of incidents that include the March and April 2009 incident. I do not agree.

34I do not find the respondent’s failure to respond to the WSIB’s request can be potentially considered as an incident of discrimination against the applicant. There is no information before me that indicates that the applicant was seeking modified work with the respondent in March 2008 and that the failure of the respondent to respond to WSIB’s request for information had a bearing on or affected the applicant’s opportunity to return to work.

35The information before me was that the applicant and respondent had no contact between March 2006 and March 2009. According to the WSIB’s March 30, 2009 letter before me the applicant considered herself to be totally impaired until January 21, 2009 after which time the WSIB and respondent discussed the applicant’s return to work. I have no information to suggest that the respondent’s failure to indicate to the WSIB what modified work it might have available in March 2008 was an action that in any way disadvantaged the applicant or her opportunity to return to work. I am not prepared under these circumstances to consider it to be part of a series of incidents of discrimination.

36In summary, this Application proceeds only in relation to the applicant’s allegations arising from the respondent’s actions in March and April 2009.