Michele Chassie v. District of Kenora Home for the Aged, 2013 HRTO 933

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Michele Chassie Applicant

-and-

District of Kenora Home for the Aged, Kevin Queen, Darryl Galusha, and Theo Torrie Respondents

INTERIM DECISION

Adjudicator: Sheri D. Price Date: May 28, 2013 Citation: 2013 HRTO 933 Indexed as: Chassie v. District of Kenora Home for the Aged

INTRODUCTION

1This Application, filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) alleges that the respondents discriminated against the applicant because of disability with respect to employment.

2In particular, the applicant alleges that the respondent employer, District of Kenora Home for the Aged, and the named personal respondents discriminated against the applicant in April 2009 by denying her a full-time job on the basis that she was working modified duties and hours following a workplace injury; in November 2009, by terminating her employment as a Personal Support Worker; and in August 2012, by refusing to rehire the applicant when asked to do so by the Workplace Safety and Insurance Board (“WSIB”).

3This Interim Decision addresses the WSIB’s request to be removed as a party to the proceeding.

BACKGROUND

4The applicant filed this Application against her former employer, District of Kenora Home for the Aged, as well certain managers in the workplace, Kevin Queen, Darryl Galusha, and Theo Torrie. In her Application, the applicant did not allege that the WSIB had infringed her rights under the Code or name the WSIB as a respondent to the Application.

5However, in their joint Response to the Application, the respondents, District of Kenora Home for the Aged, Kevin Queen, Darryl Galusha, and Theo Torrie named the WSIB as an “additional respondent” to the Application. (There is a specific section on the Tribunal’s Response form where a named respondent can name “another organization or person who is not already named as a respondent on the Application form and who [the named respondent] believe[s] should be named as a respondent.”)

6Accordingly, in keeping with its general practice, the Tribunal added the WSIB as a respondent to the Application, sent a Notice of the Application to it, and directed the WSIB to file a Response to the Application.

7In its Response to the Application, and a Request for an Order during Proceedings (“RFOP”), filed at the same time as the Response, the WSIB seeks to be removed as a party to this proceeding on the basis that there are no facts alleged by the applicant or the named respondents that could lead to a finding that the WSIB discriminated against the applicant because of disability, contrary to the Code.

8The applicant has not responded to the WSIB’s request to be removed as a party to the proceeding and the time for doing so has now elapsed.

9The respondents named by the applicant maintain that the WSIB should be a respondent to the Application.

ANALYSIS AND DECISION

10In order for a named respondent to be a proper party to the proceeding, among other things, there must be allegations against the respondent, that if true, could lead to a finding that the proposed respondent violated the Code: Smyth v. Toronto Police Services Board, 2009 HRTO 1513 at para. 12; Ivanescu v. Credit Valley Hospital, 2012 HRTO 1352 at para. 16-24; Tyrell v. Lake Promenade Apartments, 2010 HRTO 1846 at para. 4-5; Bartlett v. Hydro One Networks, 2012 HRTO 212 at para. 92.

11This is because the Tribunal has no jurisdiction to deal with general claims of unfairness or mistreatment, however serious, if such unfairness or mistreatment does not constitute discrimination under the Code.

12In this case, the respondents named by the applicant allege that, in August 2012, a WSIB Work Transition Specialist tried to persuade Kenora Home for the Aged to rehire the applicant into a part-time position working two hours per day, ten hours per week. The employer submits that it declined to do so because it did not have such a position available, among other reasons. The respondent submits that the Work Transition Specialist responded in a threatening and intimidating manner that it would be better for the employer to rehire the applicant than to deal with a human rights claim. This Application was filed some time later.

13In their response to the WSIB’s Request for an Order during Proceedings, the respondent employer and the personal respondents agree that the WSIB has not discriminated against the applicant on the basis of disability. Nonetheless, they maintain that the WSIB should be a respondent to the Application because they feel that the WSIB orchestrated the applicant’s human rights claim against them. They submit that the WSIB is attempting to avoid retraining the applicant through its Labour Market Re-entry program by trying to intimidate the respondent employer into rehiring the applicant.

14The respondents’ allegations are not a basis upon which to maintain the WSIB as a respondent to the Application.

15Even if it is true that the WSIB coached the applicant into filing a human rights Application against the named respondents, or tried to get out of providing retraining to the applicant by having the respondent employer rehire her, these are not allegations that the WSIB treated the applicant in a distinct and disadvantageous manner “because of” her disability and thus discriminated against her contrary to the Code.

16In the absence of an allegation that the WSIB discriminated against the applicant, the WSIB is not a proper respondent to the Application. The Tribunal does not have jurisdiction to deal with the respondents’ allegations that the WSIB acted improperly, in the absence of an allegation that the WSIB infringed the applicant’s rights under the Code.

17Accordingly, the WSIB is removed as a respondent to the Application.

18I am not seized of this matter.

ORDER

19The WSIB is removed as a party to the Application. The style of cause is amended accordingly.