Fredericks v. Toronto Transit Commission Sick Benefits Association, 2014 HRTO 1358

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Richard Fredericks

Applicant

-and-

Toronto Transit Commission Sick Benefits Association

Respondent

DECISION

Adjudicator: Douglas Sanderson

Date: September 15, 2014

Citation: 2014 HRTO 1358

Indexed as: Fredericks v. Toronto Transit Commission Sick Benefits Association

WRITTEN SUBMISSIONS

Richard Fredericks, Applicant

Self-represented

Toronto Transit Commission Sick Benefits Association, Respondent

Steve Lavender, 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.

2The applicant is a streetcar operator for the Toronto Transit Commission. The respondent is a corporation and was incorporated in Ontario pursuant to letters patent in 1960. The organizational respondent’s function is to pay negotiated wage replacement benefits, i.e., sick benefits to employees absent because of illness or injury (not including illnesses or injuries that may be compensable pursuant to the Workplace Safety and Insurance Act, 1997 (“WSIA”)). In this Application, the applicant alleges that he filed a request for sick benefits on January 4, 2013 and provided a letter from his doctor confirming that he was ill. The applicant states that the respondent denied his request because his doctor did not provide a recognized medical diagnosis. The applicant states that he raised concerns regarding his privacy and dignity, but was informed that a diagnosis is mandatory. The applicant states that later in 2013 he sustained a workplace injury for which he claimed, but was denied benefits under the WSIA. The applicant states that he claimed sick benefits for this injury on or about June 6, 2013, but this request was also declined. The applicant states that he was informed that his claim was denied because the respondent required more information. The applicant states that he again expressed concerns regarding the privacy of his medical information.

3The respondent filed a Response in which it denied violating the applicant’s Code rights. The respondent states that the applicant does not allege that he has a disability of any kind and has not in any event asserted any facts that would connect his allegations to a disability. The respondent states that the applicant’s claims described in the Application were denied because he did not meet the eligibility criteria for receiving benefits. These criteria are established in the respondent’s by-laws, which include a requirement to provide medical substantiation of illnesses or injuries and that sick benefit claims are managed by the Toronto Transit Commission’s Occupational Health and Claims Management section. The respondent states that the applicant has persistently refused to provide all the information required to adjudicate his claims for sick benefits; therefore, his claims have been denied. In particular, the respondent states that the applicant refused to provide a medical diagnosis in his claim for benefits in January 2013. The respondent states that the applicant alleged that he suffered an injury at work in May 2013 and that it understands that the Workplace Safety and Insurance Board denied his claim for benefits under the WSIA. The applicant then applied for sick benefits and the respondent requested information to determine whether the injury was work related and therefore ineligible for sick benefits. The applicant refused to provide the requested information and his claim was denied.

Summary Hearing

4By Case Assessment Direction (“CAD”) dated April 29, 2014, the Tribunal ordered a summary hearing to determine whether the Tribunal should dismiss the Application because it has no reasonable prospect of success. The Tribunal noted that the Tribunal does not have a general power to deal with allegations of unfairness and that the applicant must be able to show that he experienced disadvantageous treatment because of disability. The Tribunal held the summary hearing on July 22, 2014 by teleconference.

Submissions

5The applicant submitted that the mandatory requirement to disclose a medical diagnosis in a claim for sick benefits amounts to systemic discrimination. The applicant submitted that the disclosure of sensitive health information is potentially embarrassing. The applicant also submitted that the respondent does not require diagnosis information to adjudicate claims. Rather, the applicant submitted that it is sufficient for a claimant to provide information confirming that he or she was ill on the days for which sick benefits are claimed. The applicant submitted that it was an affront to dignity to require private diagnosis information. When I asked him about the nature of his disability, he conceded that his illness in January 2013 may not come within the Code definition of “disability”, but stated that his injury in May 2013 was an injury for which he claimed benefits under the WSIA and therefore comes within the Code definition. When I asked him how requiring a claimant to provide diagnosis information was discriminatory, the applicant indicated that this requirement was systemic discrimination because the respondent denies benefits to those who do not provide the requested information.

6The applicant went on to submit that he does not like to provide private medical information and does not understand the respondent’s interest in this information. The applicant submitted that such sensitive information could be embarrassing or even career threatening.

7The respondent submitted that the applicant’s submissions establish that his Application is based on privacy issues that are outside of the Tribunal’s jurisdiction. The respondent also submitted that the applicant provided no information that would indicate that he has a disability. The respondent stated that entitlement criteria for sick benefits are set by its by-laws and that it requires diagnosis information to administer claims properly.

Analysis and Decision

Reasonable Prospect of Success

8Rule 19A.1 of the Tribunal’s Rules of Procedure provides:

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.

9In Dabic v. Windsor Police Service, 2010 HRTO 1994, the Tribunal made the following comments at paragraphs 8-10:

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.

In considering what evidence is reasonably available to the applicant, the Tribunal must be attentive to the fact that in some cases of alleged discrimination, information about the reasons for the actions taken by a respondent are within the sole knowledge of the respondent. Evidence about the reasons for actions taken by a respondent may sometimes come through the disclosure process and through cross-examination of the people involved. The Tribunal must consider whether there is a reasonable prospect that such evidence may lead to a finding of discrimination. However, when there is no reasonable prospect that any such evidence could allow the applicant to prove his or her case on a balance of probabilities, the application must be dismissed following the summary hearing.

10The Tribunal has stated on many occasions that it does not have a general power to deal with allegations of unfairness. See for example: Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389, Szabo v. Office of a Member of Parliament of Canada, 2011 HRTO 2201 and Badvi v. Voyageur Transportation, 2011 HRTO 1319. Discrimination generally involves an allegation of unfair treatment on the basis of one or more of the grounds under the Code, such as race, colour or ethnic origin. 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. At the summary hearing stage, the Tribunal does not determine whether the applicant is telling the truth or assess the impact of the treatment they experienced. There is no question that acts of unfairness that are not legally discriminatory can cause significant harm.

11At a summary hearing, the test the Tribunal applies is that of no reasonable prospect of success, which is determined by assuming the applicant’s version of events is true unless there is some clear evidence to the contrary. Accepting the facts alleged by the applicant does not include accepting the applicant’s assumptions about why they were treated unfairly. The mere fact that a person identified by a prohibited ground of discrimination experiences some kind of disagreeable or unfair treatment is not generally sufficient to support an inference of discrimination. The 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. However, if the applicant is unable to point to circumstances beyond his or her own assumptions or belief, the application may be found to have no reasonable prospect of success.

12It is clear on the face of the Application and from the applicant’s submissions during the summary hearing that the applicant’s issue with the respondent is privacy. He prefers to not provide diagnosis information and asserts that the respondent does not need it. Privacy is not protected under the Code and the Tribunal has no jurisdiction to deal with privacy-related claims. In any event, it is quite common for institutions that provide benefits, e.g., medical, dental, disability etc., to set eligibility criteria for receiving such benefits and it is not per se discriminatory to do so. The applicant has not explained how the respondent’s eligibility criteria resulted in disadvantageous treatment for him related to a disability. Further, the applicant did not point to any evidence that his claim for sick benefits in January 2013 was in respect of a condition that comes within the definition of “disability” under the Code, which he essentially conceded. In these circumstances, I find that the Application has no reasonable prospect of success.

13The Application is dismissed.