Farrell v. Grand & Toy Ltd., 2013 HRTO 351

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Linda Farrell

Applicant

-and-

Grand & Toy Ltd.

Respondent

-and-

United Steelworkers Local 9197

Intervenor

INTERIM DECISION

Adjudicator: Leslie Reaume
Date: February 28, 2013
Citation: 2013 HRTO 351
Indexed as: Farrell v. Grand & Toy Ltd.

APPEARANCES

Linda Farrell, Applicant
Self-represented

Grand & Toy Ltd., Respondent
Christopher Little, Counsel

United Steelworkers Local 9197, Intervenor
Cathy Braker, Counsel

Introduction

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 because of disability.

2By Case Assessment Direction ("CAD") dated March 15, 2012, the Tribunal, on its own initiative, scheduled this matter for a Summary Hearing pursuant to Rule 19A of the Tribunal's Rules of Procedure. There are three other CAD's, dated April 10, 2012, August 15, 2012 and September 25, 2012, which together with the CAD of March 15, 2012, describe the period leading up to the Summary Hearing and the unfortunate situation the applicant found herself in as a result of the circumstances of her former counsel. The CAD's set out a history of non-compliance issues on the part of the applicant's then counsel. Every effort was made in the course of this proceeding to ensure that the applicant was able to participate effectively. The hearing took place by teleconference on October 15, 2012.

The Applicant's Allegations

3The applicant alleges discrimination on the basis of disability with respect to her employment. The applicant has been employed with the respondent since June 1989. It is not disputed that the applicant has a knee condition which has required accommodation going back to at least 1991. The applicant had surgery in 1991 and again in 2003. Because of swelling and pain in her knee the applicant requires breaks during her work day and an opportunity to apply ice to the swelling. At times the pain is severe and the applicant must leave work and rest at home.

4The allegations contained in the Application are summarized as follows:

• The applicant received a form in the mail from her employer while she was at home on sick leave on or about September 28, 2009. The form contained a statement that her knee injury "possibly could have happened somewhere other than work". The applicant disagreed with the statement and contacted her lawyer. She received a call from the employer asking her to return the form or her benefits might be cut off. The applicant brought the offending statement to the attention of the employer representative she was dealing with and that part of the form was stroked out;

• Since February 2009, the applicant has had ongoing problems with a supervisor ("EA") when she asked for time to rest and ice her knee. She alleges that EA refused to allow her to rest and ice her knee despite the fact that she is disabled. She describes EA as extremely abrupt and curt, frequently throwing his hands up in the air and asking her how many times she needs to take a break. The applicant complained to another supervisor about EA's conduct but that did not resolve his behaviour toward her.

• The applicant describes a specific incident which is alleged to have occurred on August 13, 2009. She had a painful swollen knee and hip and was limping when she walked. She approached EA and asked if she could take a break and apply ice. EA "reluctantly said yes". The applicant went to the cafeteria, obtained two bags of ice and rested outside on the patio because she prefers not to sit in the air conditioning in the cafeteria. She was approached by EA and another employee and asked to go to the nurse's room where she could sit on a bed and ice her hip and knee. The pain was intolerable and she was permitted to go home. There was a dispute over what form she should fill out but she agreed to do what her employer requested. She was given a form for her doctor to fill out, left work, saw her doctor that evening and was put on medical leave for 6 weeks. In the end, the applicant's pay was delayed 3 weeks because the forms she filled out were incorrect.

5On February 24, 2012, three days before this matter was scheduled for hearing on February 27, 2012, counsel for the applicant filed a document entitled "In addition to our initial complaint: Disability" which contains bullet points which I have summarized as follows:

a. The respondent was "ordered" but failed to provide the applicant with a chair that she could hook onto her cart;

b. The applicant was denied access to her diabetes medication;

c. The applicant was refused water that was being distributed and refused permission to get her own water;

d. The applicant was refused assistance on "many, many occasions" to lift heavy tubs and boxes;

e. After the last "tribunal hearing" confidentiality rules were broken by the union as they openly discussed her case in front of and with her co-workers;

f. The applicant was put to work under a conveyor belt "after the tribunal hearing" which was unsafe and caused problems with her knees. She was stared at, pointed at, and made fun of when people walked by;

g. The applicant was refused time to go and ice her knee;

h. The applicant was refused sick pay because she refused to take addictive medications;

i. The applicant won a harassment case but did not get her Grade 6 title reinstated;

j. The applicant was denied rest breaks in accordance with her physician's instructions;

k. In October 2011, the she was denied the ability to keep her diabetic medication in the bottom of her cart as previously agreed upon;

l. The applicant was refused permission make private calls to her doctor and lawyer;

6I do not consider it necessary to review all of the delays and non-compliance issues attributable to the applicant's counsel given that those issues are dealt with in detail in the various CAD's that have been issued. However, for the purpose of dealing with the allegations delivered on February 24, 2012, I will briefly review the chronology of the events leading up to that date.

7The hearing was scheduled to commence February 27, 2012 for two days. Counsel for the applicant had failed to comply with the rules governing documents and witness statements in advance of the hearing date. As a result, a case management conference call was held February 22, 2012, during which the applicant's counsel acknowledged his failure to comply with the rules and indicated that the evidence he intended to rely on would be consistent with the allegations contained in the Application.

8The new allegations were then delivered on February 24, 2012, three days before the hearing. At the same time, counsel for the applicant indicated for the first time his intention to call a witness other than the applicant. He copied the respondent and intervenor with a Summons to Witness containing the name of the proposed witness but failed to provide a summary of her proposed testimony.

9On the morning of the hearing on February 27, 2012, the applicant attended without her counsel. A representative from counsel's office appeared to seek an adjournment on his behalf because of illness. I cautioned the representative at that time about counsel's failure to comply with the Tribunal's Rules and my concerns about the new allegations. No request was made to amend the Application to include the new allegations nor were they sufficiently particularized to enable the respondents to respond.

10Some of these new allegations reference orders and agreements which are alleged to have arisen from a "Tribunal hearing" which never took place. It may be the case that the applicant's counsel confused the mediation process with the hearing process. In any event, no agreement was reached between the parties on any issues and no orders were made against the respondent in this proceeding. The allegations which relate to water and diabetic medication are completely new and unrelated to the allegations contained in the Application. With the exception of one allegation described as occurring in October 2011, all of the allegations are seriously lacking in particulars and do not comply with the Tribunal's requirements under Rule 6.2 of the Tribunal's Rules of Procedure which states:

6.2 A complete Application must provide the information requested in every section of the Application form and the related supplemental form(s) and Form 4 (if applicable), and must set out all the facts that form the substance of the allegations of discrimination including the circumstances of what happened, where and when it happened, and the names of person(s) or organizations(s) alleged to have violated the Applicant's rights under the Code.

11No effort was made after February 27, 2012 to clarify or particularize the new allegations contained in the document dated February 24, 2012.

12The applicant has not asked to amend her Application and on that basis alone I would not permit her to advance the allegations contained in paragraphs 4 a), b), c), d), e), f), h), i), k), and l) in the summary hearing. In addition, the prejudice to the respondent and the intervenor in receiving these vague, new allegations, on the eve of a hearing, is obvious and provides a further basis for refusing to consider these allegations as part of the applicant's claim.

13That is not to suggest that the applicant was confined to the four corners of her Application in the course of her oral submissions in the summary hearing. The purpose of the summary hearing is to permit the applicant to explain and clarify allegations in order to determine whether or an application should be dismissed for no reasonable prospect of success. The applicant was given an opportunity to explain why she felt that the employer had failed to accommodate her knee injury, which necessarily involved discussion of the allegations in 4 g) and j).

Summary Hearing Process

14The summary hearing process is described in Rule 19A of the Tribunal's Rules of Procedure as well as the Tribunal's Practice Direction on Summary Hearing Requests. The purpose of a summary hearing is to consider, early in the proceeding, whether an application should be dismissed in whole or in part because there is no reasonable prospect that the application will succeed.

15The Tribunal cannot address general allegations of unfairness, unrelated to the Code, in areas such as employment, services or accommodation and it is important that this be determined at the earliest opportunity, where appropriate. Discrimination generally involves an allegation of unfair treatment on the basis of one or more of the grounds under the Code, such as race, gender or disability. Unfair treatment 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.

16The test that is applied at a summary hearing is whether an application should be dismissed in whole or in part because it has no reasonable prospect of success. At the summary hearing stage, the Tribunal is not determining whether the applicant is telling the truth or assessing the impact of the treatment they experienced. Indeed, many experiences of unfairness, which are not defined as discrimination in the legal sense, can leave a person with significant financial and emotional damage.

17The test of no reasonable prospect of success is determined by assuming the applicant's version of events is 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.

18Accepting the facts alleged by the applicant does not include accepting the applicant's assumptions about why they were treated unfairly. The purpose of the summary hearing is to determine if reasonable inferences can be drawn from any facts or evidence the applicant is able to point to which tend to support the applicant's belief that they have experienced discrimination.

19The 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.

20Support for that connection may come in a variety of forms: the timing of a person's dismissal or discipline; comments alleged to have been made by the respondent; or comparisons with how other people were treated. These are just some examples of the circumstances, which are often contained in the narrative to the application, that play a role in assisting the Tribunal in determining whether the application has a reasonable prospect of success. 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.

21The parties are given an opportunity to make submissions, usually on a telephone conference call, during a summary hearing. These submissions are often helpful in clarifying the nature of the allegations.

22The primary focus in the summary hearing is on the applicant's 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.

23The Tribunal is also mindful of the fact that in some cases the application must proceed further in the hearing process because the respondent is the party who has control over the evidence which could favour the applicant's case.

24Having set out the basic framework for determining whether an application should be dismissed in whole or in part for no reasonable prospect of success, I now turn to the facts of this particular case.

ANALYSIS

25The applicant was given an opportunity to make submissions to assist the Tribunal in determining whether the Application should proceed. Specifically the applicant was asked to assist the Tribunal in understanding the connection between the respondent's actions and her disability. The respondent and intervenor also made submissions in support of dismissing the Application.

26The applicant addressed the first allegation in her Application about the form she received while she was on sick leave in September 2009. She did not want to sign the form because of the suggestion that the knee injury could possibly have happened someplace other than and work. She brought this concern to the attention of the person she was dealing with and that statement was removed from the form. During her oral submissions the applicant stated that she felt the letter was "against" her and that the employer was threatening to cut off her benefits. She also stated that when she raised the issue with her employer, the wording on the form was changed and "that was the end of it".

27Even if I accepted this allegation as true, there is no reasonable prospect that it would lead to a finding of discrimination under the Code. There is no evidence that the applicant was treated in an adverse manner or disadvantaged because she is disabled. By the applicant's own account, she made an assumption about the employer's motivation. Given the fact that the respondent representative changed the form when the issue was raised, there is no evidence to support the applicant's assumption that her benefits were being threatened.

28The applicant also alleged that the employer failed to accommodate her need to sit and rest periodically when her knee was swollen and causing her pain. The applicant acknowledges that she is able to take breaks and ice her knee when necessary and that she has been asked to take those breaks in her primary work area, otherwise referred to as the "cage". The applicant would prefer to take her breaks in the cafeteria or on the patio.

29The applicant's preference for taking her break on the patio is also at the root the allegation that the employer failed to accommodate her on August 13, 2009. The applicant received permission from EA to take a break and ice her knee and hip. She took two bags of ice with her from the cafeteria to the patio because she prefers to sit outside when the air conditioning is on. In her oral submissions the applicant described herself as enjoying the warmth of the sun and lighting up a cigarette. EA came out to the patio with a person from human resources and the applicant was taken to the nurse's room where she sat on the bed and iced her hip and knee. The applicant alleged that this was an example of how her supervisor treated her disrespectfully. She also acknowledged that she had been told that she was not to take her breaks on the patio.

30On this occasion, the applicant's knee was very painful and she was permitted to go home. Before she went home the applicant was asked to fill out forms for worker's compensation and she told the person from human resources that there was no sense in doing so because worker's compensation would not cover her knee issue. The applicant suggested that she should fill out forms for short-term disability. Instead, she filled out the forms she was requested to fill out, left work, saw her doctor and was booked off on 6 weeks of medical leave. The applicant stated that her pay was ultimately held up for 3 weeks because, the person from human resources changed her mind and filed for short term rather than worker's compensation.

31The applicant and the respondent have been engaged in an ongoing accommodation dialogue for many years and as a result, the applicant has an understanding of her role in the process. The applicant has not provided her employer with a medical report which would substantiate her allegation that the accommodation she has is not suitable for her. While I note that the applicant's preference is to take her breaks in a different location or have a chair that she can have attached to her work cart, the applicant is still required to provide the respondent with medical evidence that she has a need for accommodation beyond the accommodation that is being provided to her. The respondent may have a number of legitimate reasons for choosing to provide a rest area in close proximity to the applicant's primary work area.

32Even if I were to accept the applicant's evidence as true, there is no reasonable prospect that she can be successful in proving a failure to accommodate where her preferences are not supported by medical evidence.

33The applicant has raised the issue that she was poorly treated by EA during the course of seeking accommodation for her knee. This issue is not one which can be resolved without evidence and findings of credibility. The applicant describes in her Application how EA made her feel, but she does not provide the details of his alleged conduct. In order to proceed, the applicant will need to describe every comment and action on EA's part that she can recall which supports her allegation that he mistreated her when she asked for accommodation. Those details will include:

• What happened;
• Who was involved;
• When it happened;
• Where it happened;

34For example, it is not enough to state that EA gave the applicant a "hard time" when she asked to take a break. In order to proceed, the applicant will need to provide full details of each interaction so that the respondent may evaluate the applicant's allegations and provide a full response.

35I note that the applicant's circumstances have changed significantly since this Application was filed. The applicant continues to work for the respondent. She is no longer supervised by EA. When she was asked to describe her current working conditions she described her new supervisor as "fantastic". Given those circumstances and the fact that the majority of the applicant's allegations have been dismissed, the applicant may not wish to pursue her remaining allegations against EA.

36If the applicant wishes to pursue those allegations, she must provide full particulars, as described above, within 14 days of the date of this Interim Decision. The Tribunal will then issue further directions.

37If the applicant does not wish to pursue the remaining allegations, she may simply let the 14-day time limit pass, after which, the Application will be dismissed as abandoned.

38Accordingly, the applicant's allegations contained in Schedule A of her Application are dismissed with the exception of the allegations against EA that he is abrupt and curt, throws his hands in the air, makes the applicant feel "terrible", "humiliated" and "belittled" and is generally demeaning toward her in the context of her requests for accommodation.