HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Justin Jarrold
Applicant
-and-
Brewers Retail Inc. operating as The Beer Store
Respondent
DECISION
Adjudicator: Douglas Sanderson
Indexed as: Jarrold v. Brewers Retail Inc. operating as The Beer Store
APPEARANCES
Justin Jarrold, Applicant
Self-represented
Brewers Retail Inc. operating as The Beer Store, Respondent
Michelle Alton, 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 with respect to employment because of disability.
background
2The applicant commenced employment with the respondent on or about November 1, 2005 as a temporary part-time warehouse employee. The applicant achieved permanent part-time employment on or about August 20, 2007 and was promoted to permanent full-time status on or about March 1, 2010. In the Application, the applicant states that he has had chronic inner ear issues since he was a small child, which has led to permanent hearing loss. The applicant also states that he has a dust allergy and has more recently been diagnosed as being highly intolerant of wheat and dairy. The applicant states that his condition makes him more prone to illness and that his productivity dropped and his attendance became an issue when he became a permanent part-time employee.
3The applicant alleges that he was subject to discrimination because of his disability and that the respondent did not manage his absenteeism properly. On the latter issue, the applicant states that the respondent required him to attend numerous meetings to discuss his attendance, although he had provided medical documentation regarding his absences. The applicant states that he provided medical documentation of his disability related restrictions, but the respondent requested on two occasions that he sign a consent form allowing the respondent's medical adviser to contact his doctor directly, which he declined to do. The applicant was absent on a medical leave in the summer of 2011 and required accommodation regarding his workload when he returned to work. The applicant states that management personnel were insensitive regarding his restrictions.
4The respondent denies any violation of the applicant's Code rights. The respondent states that the applicant was frequently absent from work in 2012 and 2013 and managed his absenteeism in accordance with its Attendance Management Policy, which it implemented in April 2012. The respondent acknowledges meeting with the applicant about his absences, but states that there was nothing inappropriate about doing so. The respondent states that the applicant was often absent for reasons unrelated to his medical condition and did not provide medical documentation regarding most of his absences. The respondent states that it accommodated the applicant's restrictions, as identified by his physician after he returned to work after an extended leave of absence in 2011. The respondent acknowledged that it asked the applicant to sign a consent form to allow direct communication with his physician. The respondent states that the purpose of the consent was to facilitate the gathering of updated medical information in order to provide proper accommodation.
Preliminary matter – Delay
5The hearing of this matter commenced on December 16, 2013. By letter dated December 2, 2013, the respondent notified the Tribunal and the applicant that it intended to argue, as a preliminary matter that some parts of the Application should be dismissed for delay, and indeed, the respondent raised this issue at the outset of the hearing. I granted the respondent’s request for the reasons that follow.
6The Application was filed by the applicant on March 23, 2013. The respondent submitted that an incident set out in the Application and alleged to have occurred on October 27, 2009 was out of time. In the Application, the applicant alleges that a supervisor, Ms. K., spoke to the applicant in an area of the warehouse where it was difficult to hear. The applicant alleges that a co-worker advised Ms. K. to speak up because the applicant is hard of hearing to which Ms. K. responded, "I don't need to speak up, he just needs to listen closer".
7The applicant submitted that he complained to his union about this incident shortly after it occurred, but never heard back from them. The applicant stated that the incident was his first experience of such behaviour with the respondent and he was not sure of the process or if anything was done. The applicant submitted that his later absenteeism was related to this comment, even years later. In this respect, he pointed to forms his doctor had completed in connection to the applicant's claims for short-term disability benefits in 2012 and 2013, setting out the applicant's medical conditions. The diagnoses included on these forms concluded situational anxiety, workplace stress and depression, as well as inner ear issues.
8The respondent submitted that the applicant did not provide a good faith explanation for his delay in bringing this allegation to the Tribunal. The applicant was aware of the issue and complained about the incident, but did not make inquiries about how to pursue his rights. The respondent also submitted that the October 2009 incident did not form a "series of incidents" for the purposes of section 34(1)(b) of the Code. The respondent submitted that it occurred more than one year before the later incidents in the Application. The respondent also submitted that there was no factual nexus between the October 2009 incident and the later alleged incidents. The incident of October 27, 2009 was an alleged incident of harassment by Ms. K., whereas the later incidents involve the process by which the respondent sought to manage the applicant's attendance and involved other people. The respondent submitted that there was no evidence linking the alleged incident in October 2009 and the later incidents that arose in 2012 and 2013.
9The respondent submitted that the short-term disability benefit forms the applicant submitted in 2012 and 2013 do not establish a disability and demonstrate no connection between the alleged incident of October 27, 2009 and later allegations in the Application.
Analysis and decision
10Sections 34(1) and (2) state as follows:
(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.
11The Tribunal has held that to form a series of incidents there must at least be some connection or nexus between the incidents that are alleged to form the series, and a series cannot be comprised of incidents relating to discrete and separate issues. See, Baisa v. Skills for Change, 2010 HRTO 1621. Similarly, incidents involving different facts and engaging different grounds under the Code cannot form a series of incidents for the purposes of section 34(1)(b). See, Polihronakos v. Mississauga (City), 2010 HRTO 1433. The Tribunal has also held that incidents separated by a gap in time of a year or more will generally not be considered a series. See, Chintaman v. Toronto District School Board, 2009 HRTO 1225 and Savage v. Toronto Transit Commission, 2010 HRTO 1360.
12The Code requires an applicant to act with due diligence in pursuing a human rights claim by filing an Application within a year. The Tribunal has set a fairly high onus on applicants to provide a reasonable explanation for filing outside of the one year time limit in order to establish that any delay was incurred in good faith. See, Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241. The Tribunal has stated on a number of occasions that pursuing other legal remedies before turning to the Tribunal will not normally be accepted as a good faith explanation for delay. Similarly, ignorance of one’s rights may in some circumstances amount to good faith, but the applicant must also establish that he had no reason to make inquiries about his rights. See, for example, Ramnath v. Peel Regional Police, 2010 HRTO 548 at paragraphs 12 and 14.
13The alleged incident of October 27, 2009 does not in my view form a series of incidents with the later allegations in the Application. Ms. K.'s statement is alleged to have occurred about three years before the alleged incidents of discrimination regarding attendance management, which began in 2012. Although the alleged incidents of discrimination regarding attendance management are related to the ground of disability, the circumstances are entirely different from the earlier incident of October 27, 2009 and involve different individuals within the respondent’s organization. As a result, I find that the alleged incident of October 27, 2009 does not form a series with the later allegations in the Application.
14As the incident of October 27, 2009 is alleged to have occurred more than one year before the applicant filed the Application and as this alleged incident does not form a series of incidents with the applicant’s timely allegations, the applicant must establish that the delay in pursuing this allegation was incurred in good faith. The applicant found the comment attributed to Ms. K. objectionable and complained to his union about it at the time. Nothing was done and the applicant did not pursue the matter further until he filed this Application, years later. In addition, the applicant did not provide any explanation as to why he did not take any further steps to determine the status of his complaint with the union. In my view, the applicant did not act with due diligence in pursuing his rights under the Code. The applicant felt that Ms. K.’s behaviour violated his rights, and in these circumstances, he had every reason to investigate how he could enforce those rights, whether through his union or on his own initiative. Accordingly, I find that the applicant did not establish the delay was incurred in good faith.
15In light of my findings with respect to “series of incidents” and the lack of a good faith explanation for the delay associated with the allegation of October 27, 2009, this allegation is dismissed for delay.
The hearing
16The hearing proceeded after I rendered my ruling dismissing the October 27, 2009 incident. The applicant testified and tendered 11 exhibits. The respondent tendered an exhibit book containing 30 documents.
The Applicant's Evidence
17The applicant testified that he suffers from severe chronic bilateral inner ear disease and has lived with this condition all his life. He stated that the condition does not go away and that he does not know why it occurs. In that regard, the applicant tendered several documents related to the diagnosis and treatment of his medical conditions. I admitted these documents subject to the weight I may afford them, because the physicians who prepared them did not testify.
18The applicant's evidence was that he began to experience absenteeism from work over the past two or three years because of his medical condition. The applicant stated that he was also sometimes absent for reasons not related to disability, but that these absences "compounded" his medically based absences.
19The applicant's evidence was that the respondent held four coaching sessions with him regarding his absences. In his view, the meetings did not address the situation and the respondent's main purpose was to advise him that the medical information he provided was not enough. The applicant felt that he provided sufficient information to the respondent. The applicant also stated that the respondent advised him that he could lose his job if his absenteeism did not improve.
20The applicant stated that he met with Ms. JG and a representative from the short-term disability insurance carrier. The applicant's evidence was that the purpose of the meeting was to convince him to sign a medical release/consent that would permit the respondent's medical adviser to speak directly to the applicant's physician. The applicant stated that he requested clarification about why it was necessary for the respondent's doctor to speak to his doctor, but did not receive an adequate answer. Accordingly, he refused to sign the document.
21In cross-examination, the applicant agreed that the first medical documentation he provided to the respondent was in a letter dated January 11, 2011 from his doctor. The letter indicates that the applicant's inner ear condition makes him susceptible to vertigo, which could severely interfere with his ability to work. The applicant agreed that he was off work for significant period of time in 2011. He acknowledged that he attempted to return to work in September 2011 and that the respondent created a graduated return to work plan that was consistent with his restrictions and with which he agreed.
22The applicant agreed that his return to work in September 2011 was brief and that he returned to work in December 2011. The applicant acknowledged that he provided a letter from his doctor, dated December 22, 2011, that set out his restrictions. The restrictions were to avoid exposure to dust and to limit his production to performing 600 to 800 units per shift (a measurement of the orders assembled for shipment) due to a lifting restriction. The applicant did not agree that this was the only information the respondent had regarding his restrictions because he forwarded his "Attending Physician Statements” in support of his claim for short-term disability benefits to the insurer through Mr. N., one of his supervisors. These forms indicated that he had been diagnosed with mental health issues such as depression, situational anxiety and workplace stress. When respondent’s counsel informed the applicant that the respondent’s evidence would be that the respondent never received these forms, he stated that he did not know if the respondent's personnel read them. The applicant agreed that the respondent met the restrictions identified by his doctor, but that he was looked at differently for doing less. He agreed that the restrictions remain in place and the respondent continues to meet them. The applicant agreed that he had been asked to provide updated medical information in July and August 2012 and that he refused to consent to have the respondent's doctor speak directly with his doctor. He did not agree that he refused to provide medical information, only that he refused this particular means of gathering it. He agreed that he had not since provided any updated medical information and was not disciplined as a result of his refusal to sign the consent. The applicant also acknowledged that the respondent asked other employees to sign the same consent form and that the union filed a grievance regarding the use of the consent form, which grievance was withdrawn.
23Respondent's counsel reviewed the applicant's attendance record and the applicant agreed that he was absent on 27 occasions in 2012 and late on several occasions. The applicant agreed that he had been absent from work since early June 2013 on a medical leave of absence. Reviewing his attendance record, the applicant agreed that he had been absent 13 times and late 10 times between January 1, 2013 and June 7, 2013. He also agreed that many of the absences were not related to his disability and that he fought in a Mixed Martial Arts event, attended an event at a local LCBO to get a signature from Dan Aykroyd and attended a music festival on days he called in sick from work.
24The applicant agreed that he had been provided with a copy of the respondent's Attendance Policy and that the policy explains culpable and non-culpable absences. The applicant stated that he understood the difference between the two types of absences, which are defined in the policy as follows:
Non-culpable "innocent" absenteeism is an absence from work for supported (e.g. supporting documentation) reasons beyond the employee's control. This includes, but is not limited to: illnesses, accidents, and leaves due to health-related medical reasons.
Non-culpable absenteeism does not result in progressive disciplinary actions. However, this may be addressed through attendance management and counselling. Persistent or prolonged non-culpable absenteeism may result in the termination of employment.
Culpable absences are instances where an employee is absent from work without any supported (e.g. supporting documentation) and justifiable reason or excuse for reasons within the employee's control, or without having provided their manager/supervisor with adequate notice. It includes, but is not limited to: arriving to work late, leaving work early, absence without adequate or proper notice, or abuse of sick leave (paid or unpaid).
An employee may be disciplined for culpable absences and may be disciplined for failure to follow call-in in attendance procedures.
25The applicant agreed that he met with a supervisor, with a union representative present, to discuss his culpable absences in September 2012. The applicant agreed that he attended meetings on January 30, February 14 and May 31, 2013 to deal with culpable absenteeism and lateness, i.e., where he had not provided medical notes to support absences/lateness. The applicant stated that his anxiety had been very high during these meetings and stated that during these meeting he had explained that his lateness was related to anxiety and being unable to sleep. He acknowledged that he never provided the respondent with medical documentation confirming this explanation. The applicant agreed that the highest level of discipline that he had received for culpable absenteeism was a written warning that he did not grieve.
No reasonable prospect of success
26Following the conclusion of the applicant’s evidence, I advised the parties that it appeared that the Application may not have a reasonable prospect of success, as, having heard the applicant’s evidence, it did not appear that the facts asserted by the applicant amounted to a violation of the Code. Accordingly, I directed the parties to make submissions regarding whether the applicant’s evidence establishes the necessary link between the respondent’s actions and the applicant’s disability or whether it discloses an apparent breach of the Code that requires an explanation from the respondent, pursuant to the Tribunal's decision in Pellerin v. Conseil scolaire de district catholique Centre-Sud, 2011 HRTO 1777. The parties agreed to make their submissions in writing and also agreed to the timetable for filing and delivering their submissions. The applicant, however, did not file any submissions and the time for doing so has passed. The respondent filed brief submissions.
27The respondent submitted that the applicant failed to adduce evidence that he has a disability as defined by the Code and that there was conflicting evidence regarding the applicant's restrictions and issues. The respondent submitted that, in any event, the applicant did not adduce evidence that he was subject to adverse treatment with respect to his employment. The respondent submitted that the evidence demonstrated the respondent accommodated the applicant and that it attempted to better understand his condition by seeking further medical information. The respondent also submitted that the respondent engaged in appropriate counseling for behaviour, performance and punctuality issues, which do not amount to discrimination. In the alternative, the respondent submitted that if the applicant suffered any adverse treatment, then there is no evidence connecting this treatment to his disability. Accordingly, the respondent submitted that the Tribunal should dismiss the Application.
Analysis and decision
28The relevant sections of the Code are as follows:
(1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.
(1) In Part I and in this Part,
“disability” means,
(a) any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness and, without limiting the generality of the foregoing, includes diabetes mellitus, epilepsy, a brain injury, any degree of paralysis, amputation, lack of physical co-ordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment, or physical reliance on a guide dog or other animal or on a wheelchair or other remedial appliance or device,
29In Dabic v. Windsor Police Service, 2010 HRTO 1994, the Tribunal discussed the concept of a “reasonable prospect of success”, as follows at paragraphs 8 and 9:
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.
30The applicant's evidence was that he suffered from inner ear issues since he was a child. The applicant provided the respondent with several letters from his doctor (included in the respondent’s book of documents) setting out the applicant's diagnosis – severe bilateral inner ear disease – as well as the restrictions this condition imposed upon him. The respondent apparently sought more information about the applicant's condition, but there is no indication that the respondent disputed the applicant's diagnosis and the evidence was that the respondent accommodated the restrictions identified by the applicant's doctor. In any event, an employee’s obligation is to identify his or her disability related restriction and is not generally required to provide information regarding his or her diagnosis when seeking accommodation. See, Simpson v. Commissaires (Great Lakes), 2009 HRTO 1362, at paragraph 35. The respondent's submission that the applicant did not establish disability is at odds with its actions in accepting the applicant's disability related needs and accommodating them. In these circumstances, I accept that the applicant suffers from chronic severe bilateral inner ear disease and that this condition is a disability as defined in section 10 of the Code.
31The applicant stated that he suffered from mental health issues such as depression and anxiety. The only documentation the applicant provided for this was in the Attending Physician Statements the applicant submitted to support his claims for short term disability benefits. The applicant’s evidence was that he forwarded these documents through his supervisor, Mr. N., but acknowledged that he did not know if Mr. N. read them. Mr. N’s expected evidence was that he was unaware of the applicant’s disability claim. The applicant did not request accommodation regarding these conditions and there is no evidence that the respondent accepted that the applicant had been diagnosed with mental health disabilities. In these circumstances, even assuming that the applicant’s evidence was sufficient to establish that he has a mental health disability, I find that the applicant has no reasonable prospect of establishing that the respondent was aware of such disabilities or that the respondent failed to accommodate them.
32The applicant’s evidence did not show a link between his established disability and the respondent’s actions. The applicant's evidence in cross-examination established that the applicant was often absent or late for work and that a significant amount of his absenteeism and lateness was not related to disability. The respondent addressed this issue with the applicant and there is nothing per se discriminatory about managing an employee’s absenteeism. The evidence was that the respondent met with the applicant on several occasions to discuss his culpable absenteeism and lateness, i.e., incidents when he was absent or late without supporting documentation. The applicant received a written warning for these culpable occurrences. The evidence does not establish that the applicant was disciplined for absences caused by his disability. In my view, the applicant's evidence did not establish that he suffered any negative consequence as a result of his disability-related absences. Consequently, I find that the applicant has no reasonable prospect of proving that the manner in which the respondent managed his absenteeism amounted to discrimination.
33There is no dispute that the respondent wanted the applicant to consent to allow the respondent's medical adviser to speak directly with his doctor and that the respondent made the same request of other employees. The applicant refused and there is no evidence that the applicant suffered any repercussions for his decision, although it is clear that the respondent was displeased by his refusal. Nonetheless, the applicant agreed that the respondent continued to accommodate his disability related needs notwithstanding his refusal to consent. In these circumstances, where the applicant suffered no negative consequences, I cannot find that the respondent's actions amounted to discrimination. I would also note that the respondent's request to contact the applicant's doctor directly is primarily a privacy issue, which is outside the Tribunal's jurisdiction.
34The evidence was that the respondent accommodated the restrictions identified by the applicant’s doctor. The applicant's evidence, however, was that "he was looked at differently" because of his accommodations. The applicant provided no details or evidence about what "being looked at differently" entailed and he gave no evidence indicating that he ever complained to the respondent about this behaviour. In these circumstances, there is no evidence that would support a finding that the applicant was subject to discriminatory treatment or harassment because he received accommodation or that the respondent was aware of such treatment and did not respond appropriately. Consequently, I find that the applicant has no reasonable prospect of proving that the respondent did not accommodate him properly or that he was subject to discrimination or harassment because of the accommodation he received.
35For the foregoing reasons, I find that the Application has no reasonable prospect of success. The Application is dismissed.
Dated at Toronto, this 22nd day of July, 2014.
“Signed by”
Douglas Sanderson
Vice-chair