Chassie v. District of Kenora Home for the Aged, 2014 HRTO 143

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

DECISION

Adjudicator: Jay Sengupta

Date: January 31, 2014

Citation: 2014 HRTO 143

Indexed as: Chassie v. District of Kenora Home for the Aged

APPEARANCES

Michele Chassie, Applicant

Self-represented

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

Kevin Queen, Representative

CUPE, Affected Party

Mona Staples, Counsel

Introduction

1This is an Application filed under section 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.

2Following the filing of pleadings, the Tribunal issued a Case Assessment Direction setting this matter down for a summary hearing teleconference. The issues to be addressed at the teleconference were as follows:

a. dismissal of some of the allegations on the basis of delay in filing the Application;

b. summary dismissal of other allegations on the basis that there was no reasonable prospect of success; and

c. removal of the personal respondents.

3Given my rulings on the issues of delay and summary dismissal it is not necessary for me to consider the request for removal of the personal respondents. For the reasons that follow, the Application is dismissed.

decision

Background

4The applicant was employed by the respondent organization from May 22, 1997 through to November 2, 2009 on a permanent part time basis in a number of capacities including as a health care aide and a personal support worker.

5During the course of her employment, the applicant sustained workplace injuries in May, 1999 and October, 2007. She continued to work for the respondent employer until November, 2009, when her employment was terminated because a decision was made, with the involvement of the employer, the applicant's union and the WSIB, that she could not perform the essential duties of her position as a personal support worker and there were no other suitable positions within her restrictions.

6Initially the plan was that she would enter a Labour Market Re-entry ("LMR") program but a decision was made that she would not be placed in a LMR program because of her physical restrictions and the lack of jobs in Kenora. Upon her termination from employment, the applicant received loss of earning ("LOE") benefits from WSIB.

7This continued until July, 2012, when the WSIB determined that she was not totally disabled and decided she was now capable of working part time. A Work Transition Specialist ("WTS") employed by the WSIB contacted the applicant's former employer and suggested that the employer consider rehiring the applicant for 2 hours per day for a total of 10 hours a week.

8Following some discussion about whether the applicant had appropriate qualifications, the employer indicated that there was no job available, either full time or for 2 hours a day, and declined to give the applicant a job as requested by the WSIB employee.

9The applicant alleges that she experienced discrimination because she was passed over for a full time job in April, 2009, terminated from employment in November, 2009 and not hired by the respondent employer in mid-2012, when requested to do so by an employee of the WSIB.

Delay

10Section 34 of the Code states:

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.

11The allegations that involve the applicant's termination from employment in November, 2009 and those that pre-date that termination took place well past the one year contemplated by section 34.

12The Tribunal has set a fairly high onus on applicants to provide a reasonable explanation for any delay. See, for example, Klein v. Toronto Zionist Council, 2009 HRTO 241. As stated in Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241, in order for an applicant to establish that a delay in filing an application was incurred in good faith, the applicant must show something more than simply an absence of bad faith; otherwise, there would be little meaning to the statutory limitation period.

13The applicant's only explanation is that she "put her trust" in the union.

14In these circumstances, I am not satisfied that the delay in filing the Application in respect of the events alleged to have taken place in November 2009 and prior to that date was incurred in good faith. As such, it is not necessary to determine whether substantial prejudice would result to the respondents if the Application were to proceed in respect of those allegations. In light of the Tribunal's finding that the delay was not incurred in good faith, the Tribunal has no power pursuant to section 34(1) of the Code to hear those aspects of this Application.

No Reasonable Prospect of Success

15Rules 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.

16The issue that Rule 19A requires me to determine is whether the allegations concerning events that occurred in 2012, which are timely, have no reasonable prospect of success. If a finding is made that the balance of the Application has no reasonable prospect of success, then it is dismissed. In the absence of such a finding, the remaining allegations concerning events that took place in 2012 continue to proceed through the Tribunal's procedure.

17In Dabic v. Windsor Police Service, 2010 HRTO 1993, the Tribunal stated:

1. 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.

2. 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.

18The argument advanced by the applicant with respect to the events that took place in 2012 is that when the WSIB contacted her former employer and suggested that it give her a job, it did not do so and its failure to do so amounts to an infringement of her rights under the Code.

19I do not see how this argument can succeed. The applicant had not been employed by the respondent organization for almost three years when WSIB contacted it to make inquiries. The applicant had no right to return to her former job. She was not applying for a job that was available. The WSIB was asking the organization to create a position for 10 hours a week for the applicant. The applicant did not experience differential treatment relating to her disability that resulted in disadvantage to her. Rather, it appears that because she was a former employee, the WSIB sought preferential treatment on her behalf which the respondent organization declined to consider or provide.

20Consequently, even assuming all the allegations concerning the events that took place in 2012 to be true, there is no reasonable prospect that the applicant will succeed in establishing a breach of the Code.

21Accordingly, the Application is dismissed.