Patrick Berti v. Complex Services Inc., 2013 HRTO 1304

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Patrick Berti

Applicant

-and-

Complex Services Inc.

Respondent

DECISION

Adjudicator: Douglas Sanderson

Date: July 25, 2013

Citation: 2013 HRTO 1304

Indexed as: Berti v. Complex Services Inc.

APPEARANCES

Patrick Berti, Applicant

Christopher Bittle, Counsel

Complex Services Inc., Respondent

Paul Pingue, Counsel

1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of disability.

2The respondent hired the applicant on May 25, 2004 as a part-time bartender. It is common ground that the applicant sustained a workplace injury while working for another employer. The applicant required accommodation of post-concussion syndrome, resulting from the injury. The applicant states that the respondent actively accommodated the applicant during the first seven years of employment by:

a. permitting the applicant take medical leaves of absence when required;

b. working six-hour shifts;

c. not working more than two consecutive shifts;

d. not working more than four shifts per week;

e. ensuring there was another bartender scheduled to work with the applicant;

f. working evening shifts when the applicant's symptoms were less severe;

g. scheduling the applicant during busy shifts, which made it easier for the applicant to perform his job; and,

h. providing additional breaks when required.

3The respondent continued to accommodate the applicant until mid-October 2011, when he met with the respondent's occupational physician. The physician determined at that time that further accommodation was not required. The applicant asserts that the occupational physician made this determination without conducting an examination, without asking the applicant any questions or completing a medical history. The respondent states the applicant was extremely vague regarding his conditions that may require ongoing accommodation and he was, in any event, advised that the situation could be reassessed if he provided further medical information.

4It is common ground that the respondent continued to accommodate the applicant with modified hours and shifts following his meeting with the respondent’s occupational physician. The applicant asserts that the respondent agreed not to schedule him to work on his own. However, the respondent assigned him to bartend by himself on November 24, 2011. There seems to be no dispute that the applicant shifted did not go well, although the nature and extent of issues arising during the shift is in question. The applicant asserts that he had difficulty because he was assigned to a bar that had equipment and procedures with which he was not familiar. The respondent states the applicant was rude and confrontational with customers and coworkers. The respondent terminated the applicant’s employment following this incident.

5By Case Assessment Direction (“CAD”) dated February 19, 2013, the Tribunal ordered, on its own initiative, a summary hearing to determine whether the Tribunal should dismiss the Application because it has no reasonable prospect of success. The Tribunal held the summary hearing by teleconference on May 24, 2013.

ANALYSIS AND DECISION

Reasonable Prospect of Success

6Rule 19A.1 of the Tribunal’s Rules of Procedure provides:

The Tribunal may hold a summary hearing, on its own initiative or at the request of a party, on the question of whether an Application should be dismissed in whole or in part on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.

7In Dabic v. Windsor Police Service, 2010 HRTO 1994, the Tribunal made the following comments at paragraphs 8-9:

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.

8The Tribunal has stated on many occasions that it does not have a general power to deal with allegations of unfairness. See for example: Szabo v. Office of a Member of Parliament of Canada, 2011 HRTO 2201 and Badvi v. Voyageur Transportation, 2011 HRTO 1319. Discrimination generally involves an allegation of differential treatment on the basis of one or more of the grounds under the Code, such as disability or family status. The purported conduct is not discriminatory in the legal sense unless there is proof that one or more of these personal characteristics was a factor in the treatment the applicant experienced. At the summary hearing stage, the Tribunal does not determine whether the applicant is telling the truth or assess the impact of the treatment they experienced. There is no question that acts of unfairness that are not legally discriminatory can cause significant harm.

9At a summary hearing, the test the Tribunal applies is that of no reasonable prospect of success, which is determined by assuming the applicant’s version of events is true unless there is some clear evidence to the contrary. Accepting the facts alleged by the applicant does not include accepting the applicant’s assumptions about why they believe they were treated unfairly. The mere fact that a person identified by a prohibited ground of discrimination experiences some kind of disagreeable or unfair treatment is not generally sufficient to support an inference of discrimination. The question that the Tribunal must decide at a summary hearing is whether there is likely to be sufficient direct or indirect evidence available to connect the unfair treatment experienced by the applicant with the applicant’s personal characteristics. However, if the applicant is unable to point to circumstances beyond their own assumptions or belief, the application may be found to have no reasonable prospect of success.

10The applicant alleges that the respondent failed to accommodate him and that this failure led to the termination of his employment. In Baber v. York Region District School Board, 2011 HRTO 213, the Tribunal pointed out that the duty to accommodate is not a free standing obligation under the Code. Rather, it arises only pursuant to sections 11, 17 or 24 of the Code where a person is disadvantaged because of a prohibited ground of discrimination. The applicant bears the onus of establishing a prima facie case of discrimination, which, if established shifts the evidentiary burden to the respondent to show that it accommodated the applicant to the point of undue hardship.

11Jurisprudence regarding the duty to accommodate clearly establishes that all parties to the accommodation process have obligations. An employee seeking accommodation, for example, is responsible for initiating the process by stating the need for accommodation and must act in a reasonable and cooperative manner. The employer, however, is primarily responsible for determining how an employee can be accommodated, based on the information provided by the employee regarding his or her restrictions. See for example, Renaud at page 31. In Simpson v. Commissionaires (Great Lakes), 2009 HRTO 1362, the Tribunal described how the duty to accommodate is triggered at paragraph 35:

In order to trigger the duty to accommodate, it is sufficient that an employer be informed of the employee’s disability-related needs and effects of the condition and how those needs and effects interact with the workplace duties and environment. As such, an employee does not necessarily have to disclose a detailed diagnosis of the disability in order for an employer to respond to a request for accommodation. This is not to detract from the well-established principle that accommodation is a collaborative process and the applicant should endeavour to provide as much information as possible to facilitate the search for accommodation.

12Therefore, to establish the respondents were obliged to accommodate him, the applicant must provide evidence demonstrating that he identified his need for accommodation in relation to a requirement or factor that discriminated against him, directly or in effect, because of his disabilities.

13The applicant submitted that the starting point leading to the termination of his employment was the meeting with respondent occupational physician. Following that meeting, the respondent placed the applicant in a situation where he was required to work alone in an unfamiliar environment. The applicant noted that there had been no change in his physician's opinion regarding his condition. On that point, however, the respondent submitted the medical information provided by the applicant during his employment, which consists of a dozen notes and seven workplace accommodation forms. The respondent noted that the applicant's physician set out shift modifications required to accommodate the applicant, but never indicated that the applicant should not work alone. The respondent submitted that the applicant did in fact work alone prior to November 24, 2011.

14The applicant acknowledge that working with another bartender was not medically required, but submitted that the respondent nonetheless provided this accommodation. The applicant submitted that there was a nexus between the failure to accommodate him, i.e., by making him work alone, and his difficulties during his shift at November 24, 2011. However, the applicant acknowledged that there was no medical evidence stating that he could not work alone because of this condition. Moreover, the applicant pointed to no evidence that the difficulties encountered working in an unfamiliar environment where in fact related to disability. The respondent produced the applicant's written statement drafted shortly after the incident on November 24, 2011, in which he provided his explanation for the issues that arose that evening. In that document, the applicant acknowledged that he made certain mistakes and that he had difficulty coping by himself. The applicant did not, however, state that his difficulties were caused by his disability or suggest that working alone was outside his disability related restrictions. In these circumstances, I find that the allegation that the applicant was dismissed contrary to the Code has no reasonable prospect of success.

15The applicant did not agree with the occupational physician's conclusions and submitted that he was not informed about how we could appeal the respondent's decision to cease accommodation. The applicant, however, had extensive experience in providing medical information to the respondent. In any event, the applicant stated that the respondent continued to accommodate his needs for modified shifts.

16The respondent explained that it required the applicant to meet with its occupational physician visit because it had information that the applicant had taken another part-time job and wanted to determine whether the applicant's restrictions remained in force. A respondent is entitled to make reasonable inquiries to gather information regarding an employee’s ongoing need for accommodation. In this case, the respondent employed an occupational physician to gather this information, which in my view does not, in itself, amount to a violation of the Code.

17The Application is dismissed.