Hale v. Triple M Metal LP, 2013 HRTO 1796

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Steven Hale

Applicant

-and-

Triple M Metal LP

Respondent

DECISION

Adjudicator: Eric Whist Date: October 24, 2013 Citation: 2013 HRTO 1796 Indexed as: Hale v. Triple M Metal LP

APPEARANCES

Steven Hale, Applicant Self-represented

Triple M Metal LP, Respondent Fiona Brown, Counsel

1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment on the basis of disability and reprisal. The Application alleges that the respondent failed to reply to the applicant’s repeated requests in 2012-2013 for information about how to contact the respondent’s insurance carrier. The Application alleges the respondent did this in reprisal for the applicant’s 2006 complaint to the Ontario Human Rights Commission (the “Commission”) and/or in order to deny the applicant access to insurance benefits.

2On May 27, 2013, the Tribunal issued a Case Assessment Direction directing that a summary hearing be held pursuant to Rule 19A of the Tribunal’s Rules of Procedure. A summary hearing is held to determine whether an Application should be dismissed in whole or in part on the basis that there is no reasonable prospect that the Application will succeed.

3The summary hearing was held in person on August 26, 2013. During the summary hearing, I heard from the applicant and counsel for the respondent. In addition, I had before me the Application, the Response and additional documents filed by both parties.

FACTS AND SUBMISSIONS

4The applicant began work with the respondent in August 2005. He suffered a recurrence of a back injury in 2006 and then again in 2007. This injury led to the applicant being unable to work. His last day of work was January 16, 2007. The applicant continues to be a non-active employee of the respondent. He receives health and dental benefits under the respondent’s insurance plan. He receives ongoing Workplace Safety and Insurance Board (“WSIB”) loss of earnings benefits and Canada Pension Plan (“CPP”) Disability Benefits.

5In 2006 the applicant filed a complaint with the Commission alleging that the respondent’s response to his 2006 injury was discriminatory. The complaint alleges that the respondent would not clear the applicant to return to work following his 2006 back injury notwithstanding that two doctors had indicated that he could return to work. This complaint was settled in 2006.

6The applicant submits that he was subject to disciplinary action on two occasions in 2006 after he did return to work. The first occasion was when the applicant was given a written warning for being absent on October 30, 2006, the second was when the applicant was given a three day suspension for speaking to a fellow employee in a disrespectful and abusive manner on November 27, 2006. The applicant submits these disciplinary measures were unfair and excessive and were meted out in retaliation for his having filed a complaint with the Commission.

7The applicant submits that he had regular contact with the respondent during 2007-2008, apprising them of his ongoing physical condition. He submits that the respondent informed him during this period that it could not accommodate his disability.

8The applicant submits that he had no dealings with the respondent during the period 2008-2011. I note here that the Application does not allege that the respondent failed to accommodate the applicant at any time since he left work in January 2007.

9The applicant submits that in January 2012 he awoke to find himself paralyzed and a paraplegic. He states that he contacted the respondent’s head office in April 2012 about filing a claim for his paraplegia (and a dropped foot) under the respondent’s insurance plan. He submits that he was told by the person he contacted that she would have to get back to him in response to his enquiries. He submits he called this person twice more and left messages and never received a response. He submits that he proceeded to send several letters to the respondent reiterating his wish to file an insurance claim for his paraplegia and drop foot.

10I had before me copies of identical letters from the applicant to Mr. Paul Graham, the manager of the respondent’s St. Thomas yard and the applicant’s former supervisor, and to the respondent’s human resources department dated July 22, 2012. These letters state that the applicant became a paraplegic in January 2012 and wished to make a claim for his paraplegia and drop foot and that when he had contacted what had been the respondent’s insurer he had learned that this insurer was no longer the respondent’s insurer. The letters ask for the name of the new insurer and a person to contact or for the applicant’s request to be forwarded to a person who could assist him. The letters state that the applicant had been in contact with the respondent in April 2012 but had not received a response.

11I also had before me two follow up letters from the applicant to Mr. Graham dated October 25, 2012 and November 13, 2012 restating that he needed information from the respondent in order to file an insurance claim. The applicant submits that he received no response to these letters.

12The respondent submits that its records show that the applicant was in contact with the respondent by letter on two occasions in 2012.

13It appears that there is no further contact between the parties until April 2013. It appears that in April 2013 the applicant made a further enquiry to the respondent that resulted in a letter dated April 24, 2013 from the respondent to the applicant providing contact information for its health and dental care provider, its life insurance provider and its accidental death and disability provider. This letter was before me. The applicant submits this letter contained a wrong telephone number for the accidental death and disability provider.

14I also had before me a letter dated May 7, 2013, from the applicant to the respondent asking for a claims form in order to file an application for his paraplegia and drop foot and a letter from the respondent to the applicant dated from May 8, 2013, stating that the respondent was changing insurance carriers and that the applicant needed to complete and return an enrolment form by May 31, 2013. The applicant submits he never got this letter. The respondent acknowledges that this letter was not sent. It submits that this was because of an administrative error as the person responsible erroneously believed that the applicant was going to pick up the enrolment form and the May 8, 2013 letter.

15At the hearing the applicant disclosed a further document, a one page excerpt from the respondent’s benefits materials that appears to indicate that insurance benefits will be paid for severe injuries including loss of limbs and paraplegia. It indicates that if such injuries occur within one year of the date of accident the insurer will pay benefits to the victim.

16The applicant submits that the respondent’s failure to respond to his enquiries about filing a claim in relation to his paraplegia and drop foot was deliberate and was done in reprisal for his 2006 complaint of discrimination to the Commission and/or to prevent the applicant from collecting benefits resulting from his paraplegia and drop foot.

17The respondent submits that the failure to respond to the applicant’s letters in 2012 was an administrative oversight, not an act of discrimination. It submits that in 2013 it did, in fact, respond by means of its April 24, 2013 letter and did further engage with the applicant by means of its May 8, 2013 letter. It submits while the applicant provided information about his disabilities and information about not getting a timely response from the respondent he did not provide evidence or point to evidence of a nexus or connection between his disability and the failure of the respondent to adequately respond to his enquiries. It submits that the applicant has no reasonable prospect of establishing that a failure to provide information to the applicant, even if true, constitutes an act of discrimination under the Code.

18The summary hearing process is outlined in Rule 19A of the Tribunal’s Rules of Procedure. In 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.

19In this case the issue is whether the applicant has evidence or can point to evidence that can establish that the respondent’s actions are, in some measure, based on the applicant’s disability or in reprisal for the applicant having pursued his rights under the Code by filing a complaint with the Commission in 2006. The Tribunal does not have the power to deal with general allegations of unfair treatment.

20At a summary hearing an applicant has to show why his or her assumptions or beliefs for why they have been treated unfairly are linked to a Code ground. There must be an evidentiary basis beyond mere accusations or speculation for an applicant to succeed at a summary hearing.

21Having considered the information before me I do not find that the applicant has a reasonable prospect of proving that the reason the respondent failed to respond to his inquiries in 2012 and then to “inadequately” respond in 2013 was in retaliation for making a human rights complaint or were acts of discrimination based on disability.

22The applicant submits that the respondent’s two disciplinary actions in 2006 are prior incidents of reprisal for his having filed a human rights complaint and as such support his claim that the refusal to answer his enquiries in 2012 and 2013 are further acts of reprisal. However, in my view, the applicant has not shown a link between the 2006 discipline and his complaint to the Commission other than to make a bald assertion that because his discipline was unfair and excessive it must have been in retaliation for his human rights complaint. More importantly, the applicant has not established, in my view, why, even if there were tensions between the applicant and respondent in 2006, respondent staff both at its head office and at its St. Thomas facility would, in effect, conspire to refuse to provide him with updated contact information for the respondent’s insurance carrier in 2012 for his 2006 human rights complaint. I am not satisfied that the applicant has a reasonable prospect of proving there is a link between his 2006 complaint to the Commission and the respondent’s failure to adequately respond to his enquiries six years after the applicant’s human rights complaint and over five years after he ceased to be an active employee.

23The applicant also has no reasonable prospect, in my view, of proving that the reason the respondent failed to adequately respond to his enquiries in 2012 and 2013 was because the respondent wanted to deny the applicant access to a financial benefit that might be available to him under its insurance plan because of a disability. The difficulty with this theory is that it is not at all evident, based on the information before me, that the applicant’s insurance claim has any likelihood of success. The document the applicant chooses to rely on, a single page describing the coverage available under an insurance plan, states that the insurance will cover the loss of use of a limb or paralysis if such injuries occur within one year of the date of the accident. The applicant’s accident or accidents while working for the respondent date from 2006 and 2007. He communicates to the respondent that he was paralysed on January 2012, five years after he last was actively working for the respondent. Under these circumstances I cannot accept the applicant’s underlying theory that the respondent had an interest in delaying or preventing his insurance claim and that he has a reasonable prospect of establishing that this alleged discriminatory interest is why the respondent failed to respond to his requests for information in 2012 and failed to adequately respond in 2013.

24For these reasons the Application is dismissed.