HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Heather Stewart
Applicant
-and-
Her Majesty the Queen in Right of Ontario as represented by the Minister of Government Services
Respondent
INTERIM DECISION
Adjudicator: Ruth Carey
Indexed as: Stewart v. Ontario (Government Services)
APPEARANCES
Heather Stewart, Applicant
Self-represented
Her Majesty the Queen in Right of Ontario as represented by the Minister of Government Services, Respondent
Jonathan Rabinovitch, Counsel
Introduction
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, family status, marital status, age, and association with a person identified by a protected ground.
2The applicant was hired by the respondent as a project manager in September of 2010.
3By way of Case Assessment Direction (“CAD”) issued on April 22, 2013, the Tribunal granted the respondent’s Request for Summary Hearing. The CAD stated at para. 4:
The Tribunal does not have the general power to deal with allegations of unfairness… To succeed in an Application, an applicant must be able to prove discrimination on the basis of a Code ground on a balance of probabilities. To show discrimination, an applicant must prove a link between a respondent’s alleged actions and a Code ground. Having reviewed the Application, it appears that the applicant may be unable to prove a link to the grounds alleged. [Emphasis added.]
4The allegations in the Application are as follows:
the applicant was harassed in employment because of her age, her spouse’s disability, her own disabilities, and her children’s disabilities;
the respondent breached the Code when its decision concerning vacation timing adversely and negatively affected her due to her spouse’s disability;
the respondent failed to accommodate the applicant’s processing learning disorder and attention deficit hyperactivity disorder (“ADHD”); and
the respondent violated the Code when it terminated her employment on July 26, 2011, because the dismissal was a direct result of the respondent’s failure to accommodate her disabilities or alternatively, it was the culmination of the respondent’s course of harassing conduct.
5The summary hearing with respect to this Application took place by teleconference on July 17, 2013.
6The test that is applied at a summary hearing is whether an application should be dismissed in whole or in part because there is no reasonable prospect that the applicant will be able to prove discrimination. Discrimination in the legal sense requires proof of adverse or unfair treatment which is based, in whole or in part, on a person’s age, disability or other prohibited ground under the Code. In other words, the ground must somehow be a factor in the adverse treatment. Where an application appears to be missing this connection, or where it would assist the Tribunal in understanding the allegations, the parties are asked to participate in a summary hearing by teleconference.
7At the summary hearing stage, the Tribunal is not determining whether the applicant is telling the truth or assessing the impact of the treatment he or she experienced. Indeed, many experiences of unfairness that would not be considered discrimination in the legal sense can leave a person with significant financial and emotional damage. The test of no reasonable prospect of success is determined by assuming the applicant’s allegations are true unless there is some clear evidence to the contrary. In some cases, for example, the applicant will not dispute the respondent’s version of one or more of the facts. Accepting the facts alleged by the applicant does not include accepting the applicant’s assumptions about the respondent’s conduct. The purpose of the summary hearing is to determine if there is evidence to support the applicant’s belief that he or she has experienced discrimination.
8The real question that the Tribunal must decide in this summary hearing is whether there is likely to be sufficient evidence available to connect the allegedly unfair treatment experienced by the applicant with the applicant’s personal characteristics. In order to proceed to a full hearing some evidence must exist, which goes beyond the applicant’s feeling or belief that her personal characteristics played a role in what she experienced. That evidence may come in a variety of forms: the timing of allegedly discriminatory events; comments alleged to have been made by the respondent; comparisons with how other people were treated. Many circumstances play a role in assisting the Tribunal in determining whether a person has experienced discrimination in the legal sense. However, if the applicant is unable to point to evidence beyond her own assumptions or belief, the Application may be found to have no reasonable prospect of success.
9The primary focus in the summary hearing is on the applicant’s proposed evidence. The respondent’s explanation may be considered where there is no dispute about the facts or where it is plainly obvious that a fact must be true. However, the Tribunal is very careful to ensure that an application is not dismissed at the summary hearing stage simply because the respondent has an alternative explanation of the events. The Tribunal is mindful of the fact that in some cases an application must proceed further in the hearing process because the respondent is the party who has control over the evidence which could support the applicant’s case.
DECISION
10Having carefully considered the submissions of both parties I am satisfied that there are some aspects of the Application that have no reasonable prospect of success. These include the allegations with respect to age, the allegation that the respondent failed to accommodate the applicant’s disabilities, and the allegation that the applicant’s employment was terminated in part because she has a learning processing disorder and ADHD. But there are some allegations where it cannot be said there is no reasonable prospect of success, and those parts of the Application shall proceed through the Tribunal’s normal hearing process. This does not mean that the allegations in the Application that are not being dismissed will ultimately succeed at a hearing, nor should it be taken as any comment on the merits of the remaining claims. Rather, it means that those parts of the Application that are proceeding through the Tribunal’s process cannot be addressed without a hearing of the evidence of both parties.
ANALYSIS
The Harassment Claim
11Section 5(2) of the Code says:
Every person who is an employee has a right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.
12S. 10(1) of the Code says “harassment” means engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome.
13The narrative of events attached to the Application is 13 pages long and the applicant provided a further 20 pages of narrative with her Reply. In summary, the Application alleges that a few weeks after the applicant started working for the respondent, management personnel began harassing her undermining the applicant’s performance. For example, the Application alleges the applicant’s direct manager was rude, aggressive, and abrupt in her manner, ignored her, interrupted the applicant when she was speaking in group meetings and refused to sit beside her, excluded her from social events, and responded negatively to the applicant’s requests to attend medical appointments while other employees had no such difficulty. The Application also alleges suitable work was not assigned to the applicant; and her cubicle was moved to a position that isolated the applicant from her colleagues. This alleged course of vexatious conduct culminated in the applicant’s termination from employment, and the applicant’s manager’s failure to respond in a timely manner to requests from prospective employers for an oral reference. The Response essentially denies all of these allegations.
14The question that must be addressed at the summary hearing stage is whether or not the applicant can point to any evidence that would support the proposition that the behaviour described above is connected to one or more of the grounds relied on: age, disability, marital status, family status, and association with a person identified by a protected ground.
Age
15With respect to the ground of age, the Application indicates the applicant was about 50 years old when she was hired by the respondent. It states that her direct manager saw her as a woman of advanced age, perceived her to be of lesser value as a result, and simply hated that the applicant was older. The difficulty with these assertions is that they are based on the applicant’s beliefs rather than any specific comments or behaviour on the part of her manager.
16The specific factual assertions in the Application related to the allegation of age discrimination are:
the applicant was hired following a telephone interview;
the applicant’s manager was younger than she was and the applicant was older than her peers;
the applicant has experienced age discrimination in hiring processes conducted by the provincial government in the past, as have some of her friends, and there is a widely held perception among government employees that age discrimination occurs in the public sector.
17The Application states the applicant was interviewed for the position over the telephone. One conclusion the applicant seems to draw from this is that if her interview had been in-person, her age would have been obvious to the respondent and she would not have been hired. Whether or not that is the case, this is not relevant to the issues raised by the Application because the applicant was in fact hired.
18The statement in the Application about the applicant being hired following a telephone interview might also lead one to surmise that the Application is based in part on the assertion that when the applicant’s manager met her in person, she realized the applicant’s age and started treating her badly as a result. However, the Application does not say this, and the applicant did not put forward that proposition during the summary hearing. Rather the applicant states that during the first few weeks of her employment, the applicant got on well with her manager; they engaged in social conversation and occasionally companionably walked together to the subway after work. According to the Application, it was only after her manager returned from a vacation and spoke to the applicant about recent events in the applicant’s life that the treatment she complains of started. As a result, the fact that the applicant was hired following a telephone interview is not evidence that supports the proposition that the applicant experienced discrimination on the basis of age.
19With respect to the assertions that the applicant’s manager was younger than her, and the applicant was older than her peers, the respondent does not dispute the former but does the latter. The Response states (at para. 52) that of the six individuals in the applicant’s unit, two are of approximately the same age as the applicant. The applicant does not dispute this statement in her Reply. But even if I assume that the applicant was the oldest person reporting directly to her manager, that does not mean the age difference is related to the alleged negative or adverse treatment experienced by the applicant.
20This is also true of any perceived age discrimination that the applicant or her friends experienced in the past in government hiring processes, and their shared impressionistic belief that age discrimination is common in the public sector. Beliefs and suppositions are not evidence that can support a finding that there is a link between the behaviour complained of and the ground alleged.
21Based on the above, I am satisfied that there is no reasonable prospect of success with respect to the allegations in the Application related to age discrimination. This includes the harassment claim based on age and any allegation that the applicant’s termination was age-related.
Marital Status, Family Status, and Association
22The Application states that three weeks after the applicant started working for the respondent, her husband was admitted to hospital for emergency neurosurgery which rendered him a tetraplegic (or quadriplegic). At the time, the applicant’s manager was away on vacation; the manager returned to work two to three weeks later. The applicant informed her manager of her spouse’s condition and discussed her concerns about how she would meet the needs of her family. The applicant was understandably very upset. She disclosed to her manager that her two daughters had learning disabilities and were about to start university, and discussed her financial concerns as she was the sole income earner for her family. The Application states:
Within 1-2 weeks of notifying the Manager of her husband’s disability and commenting about her daughters’ increased needs relative to their peers, it became clear to [the applicant] that the Manager was discriminating against her.
23In the particular circumstances of this Application and for the purposes of the summary hearing, there is no functional difference between the allegations of discrimination on the basis of marital and family status or on the basis of association with a person identified by a particular ground. Pursuant to s. 10(1) of the Code marital status means the status of being married, single, widowed, divorced or separated and includes the status of living with a person in a conjugal relationship outside marriage. Family status means the status of being in a parent and child relationship. The Application does not allege the respondent treated married people differently than unmarried people, or those with children differently than those without; rather, the Application alleges that the respondent perceived the applicant negatively because of particular characteristics of her spouse and children. As the Application puts it, the applicant’s manager had stereotypical beliefs towards people who have “increased caregiving responsibilities for family members with disabilities”.
24As stated above, the issue at a summary hearing is whether or not the applicant can point to any evidence that would support the finding of a link between the behaviour complained of and the grounds in the Application other than the applicant’s opinions or subjective beliefs.
25The evidence that the applicant points to is an alleged dramatic change in the behaviour of the applicant’s immediate manager following the disclosures set out above. The Application states that prior to the disclosures her manager was “very pleasant”, engaged “in social conversation” including discussions of the manager’s personal life, and that they “walked to the subway together at the end of the work day on a few occasions”. After the disclosures, all that stopped.
26If I accept the applicant’s allegations as true, which I am required to do at this stage in the proceeding, I cannot conclude that the applicant’s allegations have no reasonable prospect of success. The task of the Tribunal at a summary hearing is not to assess the strength of the applicant’s proposed evidence but to determine whether or not there is some proposed evidence of a connection between the behaviours complained of and the grounds set out in the Application. Given the applicant’s proposed evidence of a connection in the timing between her disclosures and the alleged negative changes in behaviour on the part of her manager, the Tribunal is not in a position to determine the issues between the parties at this stage without the benefit of evidence and assessments of credibility. Therefore, this part of the Application will continue in the Tribunal’s process.
Disability
27In the applicant’s Reply, she identifies a third disability which she describes as a “mental impairment” arising as a result of her husband becoming tetraplegic. Solely for my purposes here, I will refer to this condition as situational depression.
28The Application says that the applicant never specifically stated to the respondent she was disabled or depressed, but after her husband’s disablement she visibly wept more than once and her managers asked her if she was aware of the services available from the Employee Assistance Program. Therefore, the applicant can point to some evidence in support of the proposition that the respondent knew or ought to have known she was depressed or perceived her to be so. Given the proposed evidence described above that the applicant’s manager’s behaviour towards her changed at this point in time, I am not prepared to say that there is no reasonable prospect of success with respect to the claim that the respondent harassed the applicant in employment because of her situational depression.
29As to the applicant’s processing learning disorder and ADHD, I am satisfied that there is no reasonable prospect of success with respect to the allegation in the Application that these disabilities were a basis of the alleged harassing behaviour described above.
30The Application specifically states that the applicant did not disclose her processing learning disorder or ADHD to the respondent. The applicant takes the position that the respondent knew or ought to have known of them because of her behaviour, her stated preference for visual learning aids or templates, her difficulties in remembering proper pronunciations and acronyms, and statements she made concerning her children having learning disabilities. The only evidence the applicant points to as a connection between the alleged harassing treatment she experienced and these disabilities is her manager’s assessment of her performance. According to the applicant, her manager identified performance problems closely aligned with the symptoms associated with a processing learning disorder and ADHD; therefore, her manager must have known she had these disabilities. The applicant does not deny any of the performance problems identified by her manager, so the applicant’s belief that her manager must have known she has a learning processing disorder and ADHD is speculative.
31The Application also states the alleged harassing behaviour by the applicant’s manager “impacted her ability to employ strategies to address her learning disabilities”. In other words, the behaviour complained of began before the applicant’s processing learning disorder and ADHD manifested itself in the form of performance problems.
The Vacation Request
32In the spring of 2011 the applicant requested she be granted vacation for a specific two week period in July. Another employee made a similar request. The applicant’s manager wrote back to both employees in the same e-mail informing them that she could not grant their requests because there was already one person who would be away during the same period and the workload was such that only one person from the unit could be absent at a time.
33The applicant does not remember the exact content of the e-mail in which she requested her vacation in July, 2011 but firmly believes she phrased it as a request for accommodation of her spouse’s disability. The respondent stated during the summary hearing that her e-mail request says: “In order to take vacation as a family, it has to be coordinated with [my spouse]’s siblings or mine, to help me with [my spouse]. This is the time period when [my spouse]’s sibling and their family would be able to take vacation.” The applicant alleges that the denial of her vacation request caused considerable difficulty as her family members attempted to rearrange their own vacations.
34The Application as filed by the applicant frames the issue with respect to the vacation request as another example of harassment in employment or a denial of accommodation. The respondent takes the position that the applicant was treated exactly the same as the other employee in her unit who requested time off, and the applicant did not expressly request accommodation, so there cannot be a breach of the Code. Section 11(1) of the Code says in part:
A right of a person under Part I is infringed where a requirement, qualification or factor exists that is not discrimination on a prohibited ground but that results in the exclusion, restriction or preference of a group of persons who are identified by a prohibited ground of discrimination and of whom the person is a member.
35The argument the applicant appears to be asserting is that the denial of the timing of her vacation request had a differential and adverse impact on her because of the arrangements in place to address her husband’s disability related needs while vacationing. This argument cannot be addressed without a hearing, as evidenced by the fact that the parties disagreed during the summary hearing as to the contents of the applicant’s e-mail request. Therefore, at this stage of the inquiry it cannot be said there is no reasonable prospect of success with respect to the allegation that the respondent’s denial of the applicant’s vacation request constitutes discrimination on the grounds of marital status or association with a person identified by a protected ground.
The Allegations with Respect to the Duty to Accommodate
36The Application essentially alleges that the respondent breached the Code by failing to accommodate the applicant’s learning processing disorder and ADHD. She argues that when the respondent realized she was struggling to perform in her job, it should have asked her what supports she needed to succeed and then provide them.
37For the reasons stated below I am satisfied that, assuming the applicant’s allegations to be true, there is no reasonable prospect of success with respect to this part of the Application.
38The duty to accommodate is not a free standing right under the Code. See: A.J.J. v. Toronto District School Board, 2013 HRTO 1189. It arises when an applicant claims she has experienced direct or adverse effect discrimination because of disability, and her employer cannot justify the discrimination by showing that the applicant could not be accommodated without undue hardship. Assuming without finding that is the case here, the difficulty with this part of the Application is that it is a well-established principle that accommodation is a collaborative process. The Ontario Human Rights Commission’s Policy and guidelines on disability and the duty to accommodate sets out the obligations of the employee as follows (at page 19):
The person with a disability is required to:
advise the accommodation provider of the disability (although the accommodation provider does not generally have the right to know what the disability is)
make her or his needs known to the best of his or her ability, preferably in writing, so that the person responsible for accommodation may make the requested accommodation
answer questions or provide information regarding relevant restrictions or limitations, including information from health care professionals, where appropriate and as needed
participate in discussions regarding possible accommodation solutions
co-operate with any experts whose assistance is required to manage the accommodation process or when information is required that is unavailable to the person with a disability
meet agreed-upon performance and job standards once accommodation is provided [citation omitted]
work with the accommodation provider on an ongoing basis to manage the accommodation process
discuss his or her disability only with persons who need to know. This may include the supervisor, a union representative or human rights staff.
39In Central Okanagan School District No. 23 v. Renaud, 1992 CanLII 81 (SCC), [1992] 2 S.C.R. 970, the Supreme Court said (at paras. 43-44):
To facilitate the search for an accommodation, the complainant must do his or her part as well. Concomitant with a search for reasonable accommodation is a duty to facilitate the search for such an accommodation. Thus in determining whether the duty of accommodation has been fulfilled the conduct of the complainant must be considered.
This does not mean that, in addition to bringing to the attention of the employer the facts relating to discrimination, the complainant has a duty to originate a solution… [emphasis added]
40So at a minimum, an individual with a disability who needs individualized supports in the workplace to do the essential duties of the job because of her disability, has a positive obligation to tell the employer she has a disability and needs accommodation.
41Although not explicitly stated in these terms, the applicant’s position is that her references to learning better with templates and visual aids, difficulties with acronyms and pronunciations, and her disclosure of her children’s learning disabilities, was sufficient to trigger a duty to inquire into her accommodation needs on the part of the respondent. When an employer is aware, or reasonably ought to be aware, that an employee has disability related needs the procedural branch of the duty to accommodate is engaged and the employer has a positive obligation to inquire into the employee’s needs. See: Sollitt v. Trillium Lakelands District School Board, 2013 HRTO 1128.
42As stated above, the applicant concedes she never told the respondent she had a disability or that she needed supports to do her job as a result of disability. The respondent’s Response says the same thing. As a result, it would appear that the applicant cannot point to any evidence that would establish the respondent was aware of any disability related needs the applicant might have. The question then is: is there evidence that the applicant can point to that would support the conclusion that the respondent ought reasonably to have been aware of the applicant’s processing learning disorder and ADHD?
43As stated above, the evidence that the applicant points to is statements she makes to her manager that she learns better with visual aids, she sometimes has problems pronouncing names and remembering acronyms; and performance problems such as not being organized, being forgetful, and displaying a “lack of time management skills” to name a few. She also points to notes concerning her performance evaluation in which her manager observes she fails to complete tasks, forgets items discussed in meetings, needs to stay on track following the project schedule, and do work within the project’s scope instead of outside it. After her evaluation the applicant worked on a performance development plan in which she identifies as a challenge the crisis she experienced as a result of her husband’s disablement which “has passed”. In her Reply the applicant states she deliberately portrayed a positive image in the performance development plan because was afraid of being fired. In the Response, the respondent states that four of the six people who directly report to the applicant’s manager are currently being accommodated for different reasons and one of those people is being accommodated for a processing learning disorder. Accommodation requests and plans are routine. The applicant does not dispute these statements in her Reply. In her materials and during the summary hearing the applicant emphasised the fact that the government department where she worked is involved in delivering human resources services to the wider public service to the extent that she presumes it is knowledgeable about employment and human rights issues.
44I am satisfied that the applicant genuinely believes the respondent knew or ought to have known of her processing learning disorder and ADHD, but the evidence listed above does not support that conclusion. It was not unreasonable for the respondent to conclude that the applicant’s statements, behaviours, and performance problems were simply indicative of someone struggling to do the job, particularly in the context of a workplace as described by the applicant and it was entirely reasonable for the respondent, without clearer information on which it might connect those struggles with the applicant’s disabilities, to conclude the problems were entirely skill related.
45Based on all of the above, I find that there is no reasonable prospect of success with respect to that part of the Application that alleges the respondent failed to accommodate the applicant’s disabilities.
Termination from Employment
46During the summary hearing the primary argument put forward by the applicant was that her employment was terminated because of her disabilities. She alleges the employer knew or ought to have known of her disabilities and should have offered her supports to help her perform better. When it did not, she performed badly and her employment was terminated as a result of that poor performance. The difficulty with this reasoning is that an employer does not have an obligation under the Code to offer underperforming employees any supports in the absence of the elements described above that give rise to a duty to accommodate. Therefore, I am satisfied that there is no reasonable prospect of success with respect to this part of the Application.
47The alternative argument that arises from the Application is that the applicant’s employment was terminated as the culminating event in the campaign of harassment discussed above under the heading “The Harassment Claim”. That part of the Application shall proceed in the Tribunal’s hearing process for the reasons stated above.
48Both parties indicate in their filings that they consent to mediation so the Registrar shall be directed to schedule a mediation session.
ORDER
49The Application shall proceed in the Tribunal’s normal manner with respect to the following allegations:
a. Whether the applicant was harassed in employment by the respondent and ultimately terminated because of her spouse’s disability, her own disability of situational depression, and/or her children’s disabilities; and
b. Whether the respondent breached the Code regarding its decision concerning vacation timing, which is alleged to have adversely and negatively impacted the applicant due to her spouse’s disability.
50All of the remaining allegations in the Application are dismissed.
51The Registrar shall contact the parties to schedule mediation.
52I am not seized.
Dated at Toronto, this 30th day of September, 2013.
“Signed By”
Ruth Carey
Member