Abrego v. St. Joseph’s Health Care London, 2013 HRTO 2116

Human Rights Tribunal of Ontario

Between: Angela Aida Abrego, Applicant -and- St. Joseph’s Health Care London, Respondent

Interim Decision

Adjudicator: Maureen Doyle Date: December 24, 2013 Citation: 2013 HRTO 2116 Indexed as: Abrego v. St. Joseph’s Health Care London

Appearances: Angela Aida Abrego, Applicant Chris Surowiak, Representative

St. Joseph’s Health Care London, Respondent Cheryl Rovis, Counsel

Introduction

1This is an Application filed on January 17, 2013, 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 age, race, colour and disability.

2The respondent denies having discriminated against the applicant.

3Following a review of the Application, a Case Assessment Direction (“CAD”) was issued on July 2, 2013, directing that a Summary Hearing take place. The CAD directed that at the summary hearing the applicant would make argument about why her application should not be dismissed as having no reasonable prospect of success and would be required to point to evidence upon which she would establish a link between the respondent’s alleged actions and the ground alleged. Additionally, the CAD noted that it appeared that there may be untimely allegations in the Application and advised that the parties may also make submissions at the summary hearing on the jurisdictional issue of delay. The Summary Hearing was held by conference call and all parties participated.

DECISION

4For the reasons that follow, certain allegations in the Application are dismissed on the basis that there is no reasonable prospect of success. I find that the allegation with respect to discrimination on the basis of disability in April, 2012 is timely, and I do not find that it can be dismissed as having no reasonable prospect of success. Accordingly, that allegation will continue in the Tribunal’s process.

ANALYSIS

Application to the Facts

5The respondent is an institution which provides various types of health care services, including long term care.

6The applicant was employed by the respondent as a “Primary Care Partner” performing duties of a Personal Support Worker for patients.

7In her Application, she indicated that the date of the last incident of discrimination was November 21, 2010, but subsequently corrected that, advising the Tribunal that the last date of discrimination was April 30, 2012, but no details were provided at that time regarding what she alleges took place on April 30, 2012. She indicated that the November 21, 2010 date was the date of her workplace accident.

8The narrative section of her Application reads as follows:

Disability – being treated poorly, demeaning comments with regard to injury. Stating she cannot do anything. Refuse to accommodate her willingness to work. Say they don’t have work for her, no modified duties. Ignoring her and being rude.

Race – treated as inferior, like she does not know anything. Treated differently than other employees.

Age – being suggested that she should retire.

9In its Response, the respondent asserted that it had been engaged in efforts to respond to the applicant’s need for accommodated work since November, 2010. It also asserted that on January 12, 2012, it advised the applicant and her union that it had determined that it could not accommodate her in her position of Primary Care Partner, due to the requirement for a significant amount of lifting, which exceeded her physical restriction. It asserted that it placed her on a “Placement List” of employees requiring accommodations and that it identified appropriate modified work for the applicant on March 23, 2012. It stated that the applicant had declined the placement.

10The Respondent also filed a Request for Order During Proceedings (RFOP), in which it sought dismissal of a number of the allegations, noting that the applicant had provided no submissions which would indicate what allegations she was making with respect to her amended date of April 30, 2012. It submitted that the only “concrete date” provided by the applicant was November 21, 2010, and that as that date is beyond the statutory one-year limitation period, it should be dismissed for delay. It noted she had provided no good faith reason for the delay and that it would be prejudiced by the delay, due to the fact that witness’ recollections will have faded.

11In the RFOP, the respondent also sought to have portions of the Application dismissed as having no reasonable prospect of success. In particular, it sought to have the allegations of discrimination on the basis of race, colour and age, dismissed as having no reasonable prospect of success.

12The applicant filed a Reply and a Response to the RFOP together, stating again that the date of the last incident of discrimination was April 30, 2012. At this point, she provided particulars, alleging that on that date, the respondent offered her modified work, but only on the condition that she give up her seniority and benefits. She also alleged that she has been “unable to secure any employment with the Respondent” since November 1, 2010.

13At the summary hearing, the applicant’s representative submitted that the respondent did not return her to accommodated work and that from the time of her accident, it did not make an effort to bring her back to work on a modified basis. The representative submitted that “events of discrimination did occur before January 2012”, but that she did not file an Application prior to January 17, 2012, because there were “ongoing discussions” until April 30, 2012. The representative submitted that the time frame she wants the Tribunal to consider is from January 1, 2011 to April 30, 2012. The representative submitted that the respondent’s intentions became clear on April 30, 2012.

14With respect to the allegation of discrimination on the basis of age, at the summary hearing, the applicant’s representative submitted that the applicant believes that because she is reaching her mid-60s, she was not given an opportunity to do the work she could.

15With respect to the allegation of discrimination on the basis of race, at the summary hearing, the applicant’s representative submitted that the allegation is based on the applicant’s perception.

16With respect to the allegation of discrimination on the basis of colour, at the summary hearing, the applicant’s representative submitted that it is the applicant’s impression that she was discriminated against on the basis of colour.

Delay and Allegations Based on Disability

17Section 34 of the Code states, in part:

(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.

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

18According to section 34(1)(b) of the Code, alleged incidents of discrimination contained in an application that is filed more than a year after the alleged incidents have taken place, will nonetheless be timely if they are part of a series of events, the last of which has taken place within the year prior to filing. In determining whether a number of incidents constitute a series for the purposes of section 34 of the Code, the Tribunal has also looked to the nature of the events as an indicator of whether they make up a pattern of conduct or relate to discrete and separate issues. See Aberdeen v. University of Toronto, 2010 HRTO 2514. It has also considered the question of the temporal gap between alleged incidents.

19With the one exception that follows, the applicant has made no particularized allegations regarding discrimination on the basis of disability either in her Application or at the summary hearing. At the summary hearing, her representative simply made the bald assertion that since December 31, 2010, there has been no effort by the employer to bring her back to work, though he also stated that no Application was filed earlier because “there were ongoing discussions”. The only particularized allegation the applicant has made is that the respondent refused to provide her with accommodated work unless she gave up her seniority and her benefits, in April 2012. The application was filed within a year of this alleged incident, and given there are no other particularized incidents, this is the only allegation I would allow to proceed. It is unnecessary to consider whether there are any incidents of alleged discrimination that should be allowed to proceed under 34(2) because the only particularized incident of discrimination alleged is in relation to the events of April 30, 2012.

Allegations based on Age and Race: Summary Hearing

20In 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. It is outlined in Rule 19A of the Tribunal’s Rules of Procedure:

19A.1 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.

21In Dabic v. Windsor Police Service, 2010 HRTO 1994 at paras. 8 and 9, 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.

Application to the Allegations

22It is clear that the applicant feels aggrieved by the actions of the respondent. As the CAD in this matter stated, however, the Tribunal does not have the general power to deal with allegations of unfairness. It can only deal with alleged discrimination or harassment on the grounds set out in the Code. 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.

23The applicant alleged discrimination on the basis of age, but at the summary hearing, her representative submitted that she “believes” that she has been discriminated against on the basis of age. The applicant has not pointed to evidence of differential treatment, nor has she pointed to what evidence she would rely upon to tie her assertion that any of the respondent’s actions were discriminatory due to her age.

24Further, the applicant has alleged discrimination on the basis of race. At the summary hearing, the applicant’s representative simply asserted that it is her “perception” that she has been discriminated against on that basis. She has not, however, indicated what evidence she would rely upon to establish a link between any actions or alleged actions by the respondent and discrimination on the basis of race.

25Finally, she has alleged discrimination on the basis of colour. At the summary hearing, the applicant’s representative asserted that the applicant has the “impression” that she has been discriminated against due to colour. However, the applicant has not pointed to evidence she would rely upon to establish a link between any actions or alleged actions of the respondent and her colour.

26As the Tribunal stated at paragraph 25 in Preddie v. Saint Elizabeth Health Care 2011 HRTO 2098, the applicant must do more than make bald assertions in order to establish a breach of the Code:

I accept the argument of the applicant’s counsel that discrimination based on race or colour can indeed be subtle and hard to detect, but an applicant must provide some reasonable basis for making allegations of such discrimination. It is not sufficient to claim discrimination as a member of a group protected under the Code and to look to a hearing process before the Tribunal as the means to discover whether such discrimination occurred; there must be some reasonable prospect that evidence the applicant has or is reasonably available to her can show a link between the events alleged and the alleged prohibited ground. I cannot find, based on the Application and the submissions of the applicant and her counsel, that there is a reasonable prospect that the applicant can prove that she was discriminated against by the respondents based on her race and colour.

27The applicant has not pointed to evidence she could rely upon to establish that he was treated differently as compared to others because of the grounds of age, race or colour. Without such evidence, the allegations of discrimination on the basis of age, race and colour in this Application cannot succeed. Accordingly, those allegations are dismissed on the basis that there is no reasonable prospect of success for those portions of the Application.

Orders

28The Tribunal makes the following orders:

1. The allegations that the respondent discriminated against the applicant on the grounds of age, race and colour are dismissed as having no reasonable prospect of success;
2. The allegation that the respondent discriminated against the applicant in April, 2012 on the basis of disability will continue in the Tribunal’s process;
3. Both parties have indicated their willingness to participate in mediation. The Registrar will schedule mediation in this matter.

29I am not seized.