HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Sandra Faulkner
Applicant
-and-
Lakeridge Health, Ontario Public Service Employees Union, Sun Life Assurance Company of Canada and Healthcare of Ontario Pension Plan Trust Fund
Respondents
INTERIM DECISION
Adjudicator: David Muir
Indexed as: Faulkner v. Lakeridge Health
Appearances
Sandra Faulkner, Applicant ) Self-represented
Lakeridge Health, Respondent ) Jessica Kearsey, Counsel
Ontario Public Service Employees Union, ) Nini Jones, Counsel
Respondent )
Sun Life, Respondent ) Valeri S. Greifenberger, Counsel
HealthCare of Ontario Pension Plan, ) Marc Rodrigue and
Respondent ) Catherine Pollack, Counsel
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 in employment and services on the basis of disability.
2The respondent Lakeridge Health is the applicant’s employer. OPSEU is her bargaining agent. Sun Life is an insurer who provided benefits to the applicant for a number of years. HOOPP is a pension plan of which the applicant is a member.
3The applicant who remains an employee of Lakeridge, worked as a laboratory technician until she suffered an injury at work in 2003. She has been off work completely since 2005 and for much of the intervening time in receipt of WSIB benefits and/or other disability benefits. The applicant was determined to be disabled from returning to her pre-accident employment and entered what was known as a Labour Market Re-Entry (“LMR”) program funded by the WSIB which was originally intended to result in her obtaining qualifications as a Registered Nurse in 2015. For reasons which are unclear at this stage the LMR changed and the possibility of a return to employment with Lakeridge began to be raised in 2011.
4In a Case Assessment Direction issued on September 16, 2013 the Tribunal directed a summary hearing be held by teleconference to hear submissions on whether or not this Application should be dismissed in part because part of it has no reasonable prospect of success.
5A summary hearing was held on April 29, 2014. All parties participated. A further issue raised by Lakeridge – that allegations made against it should be dismissed for delay was not argued at that time, but with the agreement of the applicant and Lakeridge dealt with in writing following the hearing.
6For the reasons that follow I find that the Application as it relates to OPSEU, Sun Life and HOOPP must be dismissed as having no reasonable prospect of success.
7Rules 19A.1 and 19A.2 of the Tribunal’s Rules of Procedure read as follows:
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.
19A.2 Rules 16 and 17 do not apply to summary hearings. The Tribunal may give directions about steps the parties must take prior to the summary hearing, including disclosure or witness statements.
[10] Details about the nature of a summary hearing were set out as follows in Dabic v. Windsor Police Service, [2010 HRTO 1994](https://www.minicounsel.ca/hrto/2010/1994), at paras. [8 and 9](https://www.minicounsel.ca/hrto/2010/1994):
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.
OPSEU
8The applicant’s complaint about OPSEU is that because of discriminatory attitudes it believes that she is totally and permanently disabled from her pre-injury position and have refused to file a grievance.
9The Tribunal has held that it is not discrimination for a union or association to decide not to file or pursue a human rights grievance, unless the reason for doing so was based on one of the grounds in the Code. In Traversy v. Mississauga Firefighters’ Association, 2009 HRTO 996, the Tribunal stated as follows at para. 33:
Assuming that the Code also applies to this aspect of a union’s relationship with the employees it represents, a claim that the union violates the Code must be based on an assertion of differential treatment, and not simply a failure to act. The failure or refusal to take forward a human rights issue, such as accommodation of a disability in the workplace, is not, in and of itself, a breach of the Code. There may be many reasons that have no discriminatory overtones why a union might choose not to pursue a human rights claim on behalf of an employee: see Baylet v. Universal Workers Union, 2009 HRTO 700. There must be a claim, and a factual foundation for the claim, that the failure to act was based on discriminatory factors.
See also Arias v. Centre for Spanish Speaking Peoples, [2009 HRTO 1025](https://www.minicounsel.ca/hrto/2009/1025), at paras. [16-18](https://www.minicounsel.ca/hrto/2009/1025).
10There is no evidence to which the applicant can point that would tend to support the contention that the decision not to file a grievance alleging a failure to accommodate the applicant was informed by discriminatory attitudes about her or persons with disabilities generally. Rather the evidence is that the respondent declined to file a grievance on her behalf because the information she had provided OPSEU indicated to it that such a grievance would be unlikely to succeed. OPSEU may be entirely incorrect about that judgement but based on the information available to it the decision made by this respondent cannot be said to be sufficiently unreasonable to support an inference that it was made in whole or in part for discriminatory reasons.
Sun Life
11The applicant’s complaints about this respondent are that it classified her as totally disabled from her own profession which she is not. At the hearing and in subsequent written submissions the applicant argued that the definitions of total disability in the contract of insurance are inconsistent with the Code because they do not differentiate between non-essential job duties; they do not take into account individual accommodation requests and do not mention undue hardship. The applicant argues that the definitions of total disability contributes to the ongoing discrimination that she claims to have experienced in her employment.
12The Application as it relates to this respondent is dismissed. The applicant applied for and received benefits from the insurer beginning in 2004. As with many plans, she was required to establish that she was disabled from her own occupation for a period of two years and then following that period, disabled from performing the tasks of any occupation. The applicant was determined to no longer meet the any occupation test in October 2012.
13The applicant’s complaints about this respondent seem to flow from a misunderstanding of the nature of insurance. The definitions of disability in insurance plans are different from the standards expected of an employer when considering their duty to accommodate an employee with a disability. Applying the logic of the applicant’s complaints could result in many individuals being disentitled by insurers based on a theoretical possibility of an accommodation by the claimant’s employer. The purpose of insurance plans is not to police the employer’s obligations under the Code but to provide benefits to employees who meet the disability standards set out in the insurance policy.
14The applicant does not allege that there was anything discriminatory in the termination of her benefits in October 2012, on the contrary she complains that their definition of total disability has contributed in some way to the alleged failure to accommodate her in the workplace. There is no evidence that this is the case. I find in these circumstances that the fact that the definitions of disability contained in the insurance policy do not take into account an employer’s duty to accommodate under the Code is not discriminatory.
HOOPP
15The applicant’s complaint with respect to HOOPP are somewhat similar to those against Sun Life and reflect a misunderstanding of the different obligations of employers in contrast with benefit providers such as this respondent.
16The applicant’s complaints about this respondent are that they designated her as totally disabled from her own occupation. She also complains that they refused to let her contribute to her own pension plan because she was disabled. She makes other complaints about poor service delivery including that the respondent failed to provide her with income statements for several years.
17This aspect of the Application is dismissed because it has no reasonable prospect of success. It is also out of time given the last alleged incident of discrimination occurred in 2008 (when the applicant last applied for benefits under the plan) and the Application was not filed with the Tribunal until December 20, 2012.
18The applicant applied for and received the benefit of free accrual of service credits while she was on medical leave from her employment. This benefit was renewed on several occasions based on the applicant requesting it and providing medical information to support her continuing entitlement in accordance with the plan’s definitions. The applicant let her entitlement to this benefit lapse when, as she said at the hearing, she had completed the Registered Practical Nursing certification process and believed that she was able to return to work. In short she did not think she met the definition of total disability in the plan.
19Whether or not the applicant is totally disabled within the meaning of the plan is not clear but on the facts as plead this respondent did nothing other than accept the applicant’s decision that she did not want to apply for a benefit to which she might have been entitled. There is nothing discriminatory in that.
20As regards the applicant’s complaints that the respondent refused to let her contribute to the pension plan because she was disabled there is no merit to this claim. The applicant was not allowed to contribute to her pension while in receipt of the benefit of free accrual because the contributions were being made already. She then let the benefit lapse. She is now not able to contribute because she declined to complete the application process for free accrual and is not employed with a participating employer. Her disability or not is not a factor in how the plan applies to her circumstances.
21HOOPP submits that the Application is untimely as it is beyond the one year limit. The applicant’s entitlement to free accrual from HOOPP was terminated as of April 1, 2010. HOOPP’s last substantial contact with the applicant was in February 2008 when it received medical documentation from her in support of her application for a benefit under the pan which as indicated lapsed in April 2010. As noted, the Application was filed with the Tribunal on or about December 20, 2012.
22The applicant provided no explanation for this delay. I would dismiss this aspect of the Application because it is outside of the Tribunal’s jurisdiction because it was filed more than one year after the last alleged incident of discrimination.
Lakeridge
23As indicated above Lakeridge argues that any allegation in the Application prior to December 20, 2011 should be dismissed due to delay. As noted, the Application was filed with the Tribunal on or about December 20, 2012. In the Application the applicant asserts that she was “ready to return to work since December 21, 2011”. The allegations in the Application all relate to events said to have occurred on or subsequent to that date. References to events prior to December 2011 include a general assertion that the applicant had been asking for accommodation in her pre-injury position since 2005 and a claim that an attempted return to work in 2005 was handled negligently by Lakeridge.
24In her submissions in response to Lakeridge’s request to dismiss the applicant asserts that she has alleged a series of incidents of discrimination going back to 2005 and perhaps earlier. However it is significant in my view that the applicant provides no particulars of any of these allegations. So for example she asserts that she was in contact with the employer annually seeking accommodation in a return to work, there are no particulars provided by her to support these claims. I note as well that the information the applicant does provide in her Application do not support these latter claims as the only reference to any attempts to return to work after 2005 are in October/November 2010, August 2011 and November/December 2011. This is entirely consistent with the narrative of the Application in which the articulated claim that the respondent failed to accommodate the applicant really begins with her stated ability to return to work in December 2011.
25In my view, and for the reasons below, any allegation of discrimination prior to October/November 2010 must be dismissed on the basis of delay. The allegations of a failure to accommodate the applicant between October/November 2010 and December 2011 may be out of time as well, however at this preliminary stage I am not prepared to deal with them in the absence of evidence about the nature of the claim being made in respect of them. To that end the Tribunal will make directions that the applicant provide particulars of these new allegations.
26Sections 34(1) and (2) of the Code provide:
34(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.
27The Tribunal has interpreted these provisions of the Code as requiring that a person who wishes to pursue a claim of discrimination to bring the claim forward by filing an Application within one year of the alleged incident, or where there is a series of incidents, within one year of the date of the last incident. The provision has been found to be mandatory subject to section 34(2). The limitation period is consistent with the policy objective, expressed elsewhere in the Code that human rights claims should be dealt with expeditiously. Thus, the Code requires an individual to act with all due diligence, and file their application within one year, when they may seek to pursue a human rights claim. See Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241.
28The Tribunal has also held that the phrase “series of incidents” in section 34(1) suggests a number of related or similar events occurring in temporal orders or succession. The Tribunal has held that a significant gap in time between incidents in a putative series will interrupt it.
29Having reviewed the applicant’s submissions and her pleadings in this case I am not satisfied that she has plead a series of incidents within the meaning of section 34(1)(b) as there appear to be no allegations made by the applicant between 2005 and 2010 at least. This period of five years is simply too long a gap for the series to survive. As indicated above while un-particularized the applicant does assert that she sought to return to work beginning in October/November 2010, August 2011 and November/December 2011. It may be, depending on the particulars that are provided, that these incidents may constitute a series of incidents within the meaning of section 34(1)(b). This issue may be revisited at the appropriate time.
30The Tribunal has held on many occasions that where an applicant seeks to establish that the delay in filing their application was “incurred in good faith”, the applicant must show something more than the absence of bad faith. The applicant offered no explanation for any delay which was incurred in filing this Application. Accordingly there is no basis to conclude that the delay was incurred in good faith.
31For all of these reasons the Application as it relates to Lakeridge is dismissed with respect to any incidents alleged to have occurred prior to October/November 2010.
Orders
32For the reasons set out above the Tribunal makes the following Orders and Directions:
a. The Application as it relates to the respondents OPSEU, Sun Life and HOOPP is dismissed.
b. The Application as it relates to Lakeridge is dismissed with respect to those allegations of discrimination said to have occurred prior to October/November 2010, subject to any further determination with respect to the allegations of incidents between October/November 2010 and December 2011.
c. The applicant is directed to deliver and file within 21 days of the date of this Interim Decision full particulars of her allegations with respect to an alleged failure to return her to the workplace in October/November 2010, August 2011 and November/December 2011.
d. The respondent may deliver and file an amended Response addressing the applicant’s particulars within 21 days of receiving the applicant’s materials.
33I am not seized of this case
Dated at Toronto, this 14th day of July, 2014.
“Signed by”
David Muir
Vice-chair```