Crowe v. Halton District School Board, 2014 HRTO 1543

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Debra Crowe

Applicant

-and-

Halton District School Board

Respondent

-and-

Elementary Teachers’ Federation of Ontario

Intervenor

INTERIM DECISION

Adjudicator: Kathleen Martin

Date: October 16, 2014

Citation: 2014 HRTO 1543

Indexed as: Crowe v. Halton District School Board

WRITTEN SUBMISSIONS

Debra Crowe, Applicant

Self-represented

Halton District School Board, Respondent

Nadya Tymochenko, Counsel

Elementary Teachers’ Federation of Ontario, Intervenor

Patricia L. D’Heureux, 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. This Interim Decision addresses a Request to Intervene filed by the applicant’s union and determines whether the Application should be dismissed on the basis that it has no reasonable prospect of success.

Background and Procedural History

2The following summary is based on the background facts set out in the Application and Response and the filings received by the Tribunal.

3The Application was filed on October 4, 2011. The applicant, a special education resource teacher of the respondent Board, alleges she was discriminated against on the basis of disability and reprisal. While the applicant states that “the employment problem began” when she “returned to Halton in 2001-02”, the particularized allegations appear to stem from the period February 17, 2010 and following, and arise from remarks made and/or actions taken by the respondent or school staff following an injury and the applicant’s return to work in the fall of 2010 after a leave of absence for health reasons.

4Among other things, the applicant alleges that the principal made an inappropriate remark when she was being loaded into the ambulance after her injury; that during the return to work meeting in September, the disability manager said she may order the applicant to give her the medications and that the principal wanted to know the “names of meds”; that a teacher swung a door hitting her; that various staff made inappropriate remarks to her; that she was accused of being unfit to teach by the principal which led to an investigation by the Children’s Aid Society (“CAS”); that the applicant had to use sick days for the CAS matter and she lost pay and pension contributions; that upon her return to work, she had to undergo an “IME”; that employment information was sent to the physician doing the IME prior to her signing a waiver; and that she was transferred to another school.

5With respect to the alleged reprisal, the applicant alleges that she is “worried” that she will be reduced to half pay again if she does not participate in an IME and also that she may lose pay.

6The remedy sought includes lost wages and pension contributions, return to a position and education and policy development for all employees. While not particularized, it appears the remedy relates to the financial impact of the CAS investigation insofar as the only allegation expressly referenced as leading to a pay loss is the applicant’s statement that she had to use sick days for the “CAS matter” and lost pay and pension contributions.

7A Response was filed. The respondent sets out a summary of the applicant’s employment and denies the allegations in the Application. Among other things, the respondent states that the applicant was assigned home with pay following an incident on October 4, 2010, requiring a report to the CAS and that upon her return to work, the applicant agreed to participate in an independent medical examination by a Board appointed doctor (the IME). The respondent states that the applicant subsequently filed a complaint against this psychologist, following which it was agreed that the applicant would undergo an assessment with a different doctor. The respondent submits that after the first appointment with the second doctor the applicant failed to attend further appointments which prevented the creation of an accommodation and return-to-work plan.

8The respondent submits that many of the specific allegations are lacking in details, constraining its ability to respond.

9In addition, in or around the same time as filing the Response, the respondent filed a Request for Order During Proceeding and a Request for Summary Hearing. The respondent submitted that the Application should be dismissed on the basis that even if the events did occur, they do not demonstrate differential treatment by the respondent under the Code, or in the alternative, because the applicant has failed to identify a nexus between the differential treatment and a prohibited ground.

10The applicant filed a Reply to the Response providing her reply to the history of her employment relationship and in some instances further details on her allegations. On the issue of loss of pay and pension contributions, the applicant states that the pension board told her that there was a break in service and if she has made a mistake, she apologizes.

11A Request to Intervene was filed by the applicant’s union, Elementary Teachers’ Federation of Ontario (“ETFO”).

12By Case Assessment Direction dated June 13, 2012, the Tribunal granted the Request for Summary Hearing and stated that the Request to Intervene would be addressed at the outset of the summary hearing.

13A summary hearing was initially scheduled for September 21, 2012, but was adjourned shortly before the hearing at the request of the applicant for medical reasons. Thereafter, the applicant sought and was granted several extensions to provide information on the status of her medical condition and/or her ability to participate in a hearing. As of late May 2013, based on the information provided by the applicant, it appeared that the applicant was able to participate in a hearing subject to being provided with accommodations and that the applicant wished to proceed by way of written submissions.

14On July 18, 2013, the Tribunal issued a Case Assessment Direction confirming that a half-day summary hearing would be scheduled by the Registrar and that the accommodation requested by the applicant would be provided. The Tribunal further stated that based on the applicant’s request, she may elect to waive her right to an oral hearing and provide a written response only or proceed in the usual manner with both written and oral submissions. In the CAD, the Tribunal highlighted that it is not unusual for questions to be posed to the parties in a summary hearing and if the applicant had any concerns about addressing any questions orally, she may raise any concerns with and/or make a request to the adjudicator during the summary hearing.

15On August 19, 2013, the applicant filed a response stating “Waive oral hearing, commence with written summary hearing (only)”.

16On September 11, 2013, having regard to the applicant’s request, the Tribunal issued a further Case Assessment Direction which stated in part:

The Case Assessment Direction dated June 13, 2012 provided directions regarding the summary hearing. In particular, the Tribunal stated in part at paragraph 5:

…The applicant will proceed first during this summary hearing. The applicant shall make argument about why the Application should not be dismissed as having no reasonable prospect of success, and point to the evidence on which the applicant will prove a link between the respondent’s actions and the grounds cited. The applicant shall also be prepared to respond to the arguments in the Request for Summary Hearing.

Having regard to the applicant’s wish to waive an oral hearing, the Tribunal directs as follows:

• By October 11, 2013, the applicant shall file comprehensive written submissions responsive to the direction set out in paragraph 2 above including responding to the arguments made in the Request for Summary Hearing and submitting copies of any documents or cases she relies on with a copy to the other parties;

• By November 1, 2013, the respondent and the proposed intervenor may file any written submissions in response along with copies of any documents or cases relied on;

• By November 22, 2013, the applicant may file any reply; and

• If the parties rely on material already filed with the Tribunal as part of their submissions, the material relied on should be expressly identified in their submissions.

Unless directed otherwise, the Tribunal intends to address the issue in the summary hearing based on the written submissions made so the parties and the proposed intervenor should ensure their submissions are complete.

(Emphasis added)

17Initially, the Tribunal did not receive any submissions from the applicant on the substantive issues raised in the summary hearing, although the applicant filed a letter asking that counsel for the proposed intervenor be removed due to an alleged conflict of interest. The respondent filed further submissions on the summary hearing issues and the proposed intervenor submitted a letter taking no position on the summary hearing but reserving its right to file a full response if the Tribunal intended to consider the applicant’s request that counsel be removed.

18Upon a review of the material filed by the respondent, it appeared that the applicant may have filed submissions. A Case Assessment Direction dated June 17, 2014 sought clarification of the same. On June 20, 2014, the respondent filed a copy of submissions which it received from the applicant. The applicant did not file any response to the CAD.

Request to Intervene

19I address first the Request to Intervene and then turn to the issues in the summary hearing.

20The Request to Intervene is unopposed. While I acknowledge the applicant has a concern of what she characterizes as the named counsel for ETFO as having a potential conflict of interest, I find that to be a separate issue from whether or not the applicant’s union should be granted intervention.

21The Tribunal has found that a union such as ETFO nearly always has an interest in an application brought by a member of one of its bargaining units and that, absent exceptional circumstances, will be granted intervention status when it seeks it. See Boyce v. Toronto Community Housing Corporation, 2009 HRTO 131 at para. 13, and cases citing that decision.

22In this case, I see no reason to depart from the Tribunal’s usual practice, and grant ETFO’s Request to Intervene. Given ETFO’s position at this stage of the summary hearing (i.e. that it takes no position), I do not find it necessary to consider the alleged conflict of interest issue with respect to counsel. The extent of the union’s role and participation in any hearing into the merits of the Application, including whether the named counsel has a conflict of interest, will be determined by the Vice-chair or member hearing the matter.

Should the Application be Dismissed as having no reasonable prospect of success?

23In Dabic v. Windsor Police Service, 2010 HRTO 1994, the Tribunal made the following comments at paras. 8-9:

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.

24Further, the Tribunal has often highlighted that it does not have the power to deal with general allegations of unfairness. For an Application to continue in the Tribunal’s process, there must be a basis beyond mere speculation and accusations to believe that an applicant could show discrimination on the basis of one of the grounds alleged in the Code, or an intention by a respondent to commit a reprisal for asserting one’s Code rights. See Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389 at para. 17.

25Having regard to the Case Assessment Direction of June 13, 2012, granting the Request for Summary Hearing, both issues in Dabic are engaged in this summary hearing. That is, the Tribunal asked the applicant to point to the evidence on which she would prove a link between the respondent’s actions and the grounds cited and the applicant was also directed to respond to the arguments in the Request for Summary Hearing (the latter included submissions that even if the applicant’s allegations are true, they do not amount to allegations of discrimination under the Code).

26For reasons that follow, I find that a number of the allegations have no reasonable chance of success and they are dismissed on that basis. Other allegations will continue in the Tribunal’s process.

The Applicant’s Allegations

27Before considering the applicant’s allegations in detail, I find it appropriate to highlight certain limitations inherent in the review of the written material filed.

28There is a lack of clarity to the content and scope of the applicant’s allegations. The original Application Form 1 set out certain allegations as summarized above. The applicant’s subsequent filings to complete the Application were comprised of a number of additional emails, some of which have numerous attachments and not all of which seem complete. The content of the additional material filed varies from what appears to be different iterations of the applicant’s allegations in the Application (i.e. Form 1) to what appears to be background information insofar as relates to past incidents not directly referenced in the Form 1. Further, as indicated above, while the parties were directed to file comprehensive written submissions in the summary hearing, including expressly identifying material the parties wished to rely on, the applicant did not do so. In fact, the applicant only provided submissions in respect of a subset of what appears to be her allegations and did not reference any additional material that she relied on. All of the foregoing presents challenges to identifying and assessing the applicant’s allegations.

29Subject to these limitations, in addressing the issues in the summary hearing, I have considered the filings of the applicant, including the Application (including the Form 1 filed October 4, 2011, documentation filed October 7, 2011, an email sent January 31, 2012, an email sent February 21, 2012, and five emails sent at various times on February 27, 2012); the applicant’s Reply to the Response; and the applicant’s submissions in the summary hearing.

30I have also had regard to the filings of the respondent, including its Request for Summary hearing, its additional submissions dated June 7, 2013, and its submissions responding to the applicant’s submissions in the summary hearing.

31I now turn to a consideration of the applicant’s allegations.

Alleged comments by principal on February 17, 2010

32The applicant alleges that after she was injured by a student on February 17, 2010, the principal wanted to know her medication, and that while being loaded into an ambulance, said to the applicant “Now I have these four men to myself”, which appears to be in reference to the ambulance driver and/or attendants. The applicant states that one driver said that “three of us are married”.

Request to Know Medication

33With respect to the request for medication, initially, the applicant did not provide any contextual details beyond the foregoing description. In her Reply, the applicant stated that she was conscious and was able to inform the ambulance driver of her medications. She goes on to state that the principal stated in a subsequent meeting that the principal had made the comment because the ambulance drivers had placed a drip in her arm.

34In its response to the Reply, the respondent submits that the applicant has described that there was an appropriate purpose for asking the question about the medications and in the circumstances, the question does not demonstrate a disadvantage to the applicant so as to constitute discrimination on the basis of disability.

35The applicant made no submissions on the comment in the summary hearing submissions and did not challenge the respondent’s submissions and conclusion.

36On the basis of the material filed, I find that there is no reasonable prospect that the applicant will be able to establish that the query in the circumstances described constituted discriminatory treatment on the basis of disability. The applicant has not challenged the respondent’s characterization that there was an appropriate purpose for posing the question in the context described and in fact elected to not make submissions on this allegation in the summary hearing. In the result I assume the applicant accepts the explanation. The allegation is dismissed.

Alleged Remark of Having Four Men to Herself

37The applicant alleges that the comment about having four men to herself is discrimination on the basis of marital status, sexual orientation and physical disability. She also characterizes it as an insulting, degrading comment to a person in pain.

38The respondent submits that the grounds of marital status and sexual orientation have not been previously pled by the applicant and in any event, the applicant has not identified any differential treatment causing the applicant a disadvantage linked to the ground cited. The respondent has not provided a specific factual response to the allegation.

39I can appreciate the respondent’s concern that the ground of marital status and sexual orientation was not previously pled. However, the factual allegation was made in the original Application and at the summary hearing stage, I do not find it appropriate to dismiss the allegation on the basis that new grounds are being pled. As for the substance of the remark, it is not appropriate to make any factual or legal findings at the summary hearing stage and what grounds, if any, are engaged. However, it cannot be said that the applicant has no reasonable prospect of establishing that the content of such a remark is discriminatory based on either one of the grounds identified and/or under the Code.

40This allegation will continue in the Tribunal’s process at this stage. However, if the applicant is seeking to rely on additional grounds including marital status and sexual orientation to support this allegation, the applicant is required to file a Request to Amend within 14 days of the date of this Interim Decision. Should the applicant fail to do so, I may find that she has abandoned this allegation and dismiss for this reason.

Request/Demand that Applicant disclose medication during Return to Work Meeting

41The applicant alleges that on September 1, 2010, during a back to work meeting, the principal wanted to know the medication she was on in case there is ever another accident and the disability management officer demanded to know the medication she was on, stating “I may just force you to tell me your medication”. The applicant submits that these remarks were unwelcome based on her visible and invisible disabilities.

42The respondent submits that the applicant has not demonstrated that the query made was differential treatment of the applicant based on disability as opposed to a return to work process nor that she suffered a disadvantage. The respondent has not provided a substantive response to these allegations.

43At this stage, these allegations will continue in the Tribunal’s process.

44Based on the material filed, I assume, without finding, that the applicant will be able to establish that she has or had a disability within the meaning of the Code at the applicable time. The respondent did not appear to directly challenge this point and the Application includes sufficient references to the applicant returning to work on a graduated basis after a medical leave and using a cane for assistance. Assuming that the applicant will be able to establish that she has or had a disability, the question is whether there is no reasonable prospect of establishing that these comments or demands (assuming they were made during the context of a return to work meeting) constitute disadvantageous treatment linked to the applicant’s disability.

45I acknowledge that context will be relevant. However, at the summary hearing stage, the applicant’s description of what was stated and how it was characterized (i.e. in the case of the disability manager as a “demand”) is assumed to be true. Further, it is not apparent to me based on the absence of a substantive response why this query was justified in the context of a return to work meeting. In the result, based on the submissions made, I cannot conclude that there is no reasonable prospect of the applicant establishing that these requests or demands are disadvantageous treatment linked to disability. These allegations will continue in the Tribunal’s process.

Alleged treatment on September 2, 2010, including being hit and subjected to insulting and degrading comments

46The applicant submits that on September 2, 2010, she was subjected to insulting comments when an educational assistant pointed to her lower leg and four prong cane while stating “stay away from her, she is nothing but trouble” and the principal stated that “maybe you should go sit down”. In addition, the applicant submits that on the same date, a teacher, while looking at the applicant, opened the door so wide that she hit the applicant causing her extreme pain, an incident that was observed by the principal, two educational assistants and a male teacher who, while walking away to pick up a binder for her is shaking his head.

47The respondent submits that the applicant has not identified any distinction or differential treatment on the basis of disability causing the applicant a disadvantage. The respondent states that there is no allegation that the teacher deliberately hit the applicant because she had a disability. Further, the respondent submits that there is no allegation that the comments were made as a result of the applicant’s disability or caused the applicant a disadvantage on the basis of disability.

48I agree with the respondent in part.

49With respect to the alleged incident of a teacher allegedly hitting the applicant with the door, even assuming the action occurred as described, the applicant has not provided a sufficient factual foundation of how the alleged action is linked to her disability. While the applicant appears to speculate that there is a connection, this is not sufficient to permit the allegation to continue in the Tribunal’s process. In the result, this allegation is dismissed on the basis that there is no reasonable prospect that the applicant will be able to establish a connection between the alleged action and disability.

50I reach a different conclusion about the alleged comment.

51The applicant describes an educational assistant making a comment to her which is arguably negative while pointing to her leg and cane and the principal being present insofar as the principal suggests she go sit down. The respondent has not provided a substantive response to this allegation but submits that even if the statements were made, which are denied, they do not constitute a distinction on the basis of disability causing a disadvantage.

52I disagree. Given the arguably negative content of the remark and the linkage to the applicant’s leg and cane, I am unable to conclude that there is no reasonable prospect that the applicant will be able to establish that she was discriminated against based on disability. This allegation will continue in the Tribunal’s process.

Principal following Applicant into School and Bending to Observe Applicant during Fire Drill

53The applicant alleges that at the first fire drill in the 2010-2011 academic year, the principal engaged in “unwelcome” action on the basis of disability when the principal followed the applicant into the school and bent her knees to lower herself to observe the applicant walk with the four prong cane beside kindergarten students returning from fire drill.

54In response, the respondent submits that there is no identification by the applicant of differential treatment on the basis of disability and there is no identification of a disadvantage to the applicant from the principal bending down.

55The applicant did not reply to these submissions.

56I find that there is no reasonable prospect that the applicant will be able to establish that this action of the principal was disadvantageous treatment based on disability. This allegation would appear to be made for the first time in the applicant’s submissions in summary hearing. At best, the sparse details provided suggest that the applicant was being observed. In the limited context provided, even assuming the principal was observing the applicant, I do not view the mere act of observing to be disadvantageous treatment. Further, it would appear that the applicant’s view that this observation was linked to her disability is speculative at best.

57In the circumstances, the allegation is dismissed.

Alleged Unwelcome Comments during School Resource Team Meeting, September 2010

58The applicant alleges that during the first School Resource Team meeting following her return to work, the speech language pathologist criticized the applicant for what she perceives as the applicant’s “poor” decision-making because she had not researched the background of the student. The applicant states that she had prepared for the meeting ahead of time and justifies her handling of this student file by submitting that had the speech language pathologist read the student’s reports, the speech language pathologist would understand why certain recommendations were made. The applicant further alleges that the supply teacher who was in the applicant’s role part time asked what the applicant did with her time and that the principal said nothing to either the speech language pathologist or the supply teacher. The applicant alleges that these were unwelcome comments based on her physical disability and moving slower between the office (the location of the student files) and the primary wing, although she does not explain the basis for the link between her allegations and physical disability.

59I find that there is no reasonable prospect of the applicant proving that she was discriminated against in the remarks made during the school resource team meeting.

60While the remarks are arguably negative or critical about the applicant, it would appear that the applicant’s view that the remarks are discriminatory is based on speculation. The applicant has not adequately explained the basis of her belief of the connection to disability, nor has she provided a sufficient factual foundation from which I could infer a connection. While in the original Form 1, the applicant stated that the question about what she does with her time was made at the time that she had a disability (i.e. was “using a cane”), I do not find that that the fact that she was walking with a cane at the time is sufficient to establish a link between a negative comment made in a meeting and disability. Further, with respect to the alleged comments made by the speech pathologist, the applicant appears to suggest that the speech pathologist was incorrect and that she acted appropriately in her handling of the student file and preparation for the meeting. Thus, beyond her assertion of a link, the applicant does not appear to be suggest that her actions or approach to handling the student file was impacted by or connected to her disability or more particularly, moving slower between different locations in the school.

61This allegation is dismissed.

Alleged Unwelcome Comments by Principal on October 4, 2010 and Assignment Home With Pay

62The applicant alleges that the principal “accused” her of being unfit to teach and that she had emotionally and physically damaged a child. In previous filings, the applicant also alleged that the principal asked the applicant to leave school without advising the applicant of her rights and that the applicant had to use her sick days for the subsequent CAS investigation (which led to lost pay and pension contributions).

63The background context to these allegations is provided by the applicant in her supporting material. It would appear that the allegations stem from an incident on a specific date involving the applicant and one student. As a result of this incident, a report was made to the Children’s Aid Society (“CAS”) pertaining to allegations of emotional and physical harm. The documentation reflects that the CAS contacted the applicant, that ETFO provided a written response on the applicant’s behalf, and that the CAS concluded that the concerns regarding inappropriate physical force and/or emotional harm were not verified.

64In her written submissions in the summary hearing, beyond making the assertion that the principal’s allegations against her are discriminatory based on “invisible disability”, the applicant challenges the veracity of the allegations made about her stating that the student was not taken to the hospital but went out to play (I presume after the alleged incident) and that the parents were not immediately called but only after 3:45 p.m., which is against Board policy. Elsewhere in the applicant’s filings, she challenges the principal’s actions on the basis that “the principal is not to make allegation upon allegation, but instead to advise the staff member to go home and to call the local union office” and that the principal in this case did not follow that process.

65Further, in the applicant’s written filings, the applicant raises other concerns about the process followed (for example, she should have been sent home immediately and allowed to call her union representative from home) and that the process should have been resolved sooner.

66The respondent submits that even if the statements were made by the principal, which are denied, the context required the respondent to contact the CAS and the applicant has failed to demonstrate any nexus between the statements and the ground of disability.

67I address first the issue of pay and pension contributions. While the applicant initially alleged that she had to use sick days for the CAS matter, the respondent disputed this and the applicant appeared to accept this in her Reply. The applicant did not make further submissions on this point in the summary hearing and in fact in the Reply agreed that she was assigned home with pay pending the investigation by the CAS and that this is the protocol followed in these circumstances. Having regard to all of the foregoing, I have presumed that the applicant is no longer pursuing this allegation.

68With respect to the other allegations, the substance of the applicant’s allegations appears to be that there was an unjust accusation made against her by the principal and that proper protocol was not followed in handling the issue, such as advising the applicant of her rights before sending her home. I find that there is no reasonable prospect that the applicant will be able to establish a link between these allegations and disability.

69I accept that an accusation levied against a teacher for alleged harm of student can be disadvantageous treatment notwithstanding that a teacher is assigned home with pay. However, apart from her assertion that there is a nexus between the accusation and disability, the applicant has failed to explain how or why the accusation made was linked to or was made because of disability. I do not understand the applicant to be alleging that there is any merit to the complaint of what allegedly happened with the student. Further, the applicant does not appear to be asserting that a disability she had affected her handling of the situation. Further, the applicant does not explain how the principal treated her differently and/or disadvantaged her because of her disability.

70Similarly, with respect to protocol deficiencies, even assuming the applicant was not apprised of her rights or the process was not followed in the usual way, the applicant has also not adequately explained any link between any alleged deficiency in process and disability.

71In the result, I find that there is no reasonable prospect that the applicant will be able to prove that the unwelcome comments and/or the protocol deficiencies constitute differential treatment or disadvantageous treatment because of disability. The allegations are dismissed.

The Request/Requirement for an IME and Related Allegations Regarding Process and Information Being Sought

72The applicant alleges that on January 13, 2011, the executive officer of the respondent told her that she did not believe her about the events that led to the CAS investigation and that she would have to undergo a psychiatric assessment (i.e. IME with the doctor selected by the respondent). The applicant alleges that she had “no choice” but to participate and raises a number of concerns about the process, including that she was asked to sign a waiver/consent form permitting the executive officer to see her medical records, that her employment information was sent to the physician before she signed a waiver form, that she was advised that the respondent wanted a “diagnosis” and that the package sent to the second physician she saw contained no questions pertaining to accommodations. The applicant states that other employees who have had CAS allegations against them have not had to undergo an IME.

73To the extent the respondent has responded to the allegations, it would appear that it has a very different view of events. The respondent submits that the applicant failed on two different occasions to successfully return to work, that the IME was requested and “agreed to” following the CAS incident and that the agreement to participate is consistent with the respondent’s practice when health information is required for accommodation purposes. The respondent includes an Affidavit in support of its Request for Order During Proceeding to dismiss the case in which a senior manager of the respondent attests to the explanation and the applicant’s agreement to the same. The Affidavit also includes a number of exhibits including the letter in which the respondent requests the IME. The letter states that the respondent “requests” that the assessment be conducted by a “Board appointed doctor” and that in the interim, the applicant will continue to be assigned home and that the applicant should not have contact with staff, parents or students, nor be on the respondent’s property. Subsequent written direction to the applicant concerning a second physician that the applicant was asked to see reflects that the respondent and union agreed that the applicant undergo another assessment.

74The respondent did not respond specifically to all of the allegations made by the applicant (for example, whether a diagnosis is to be provided). I issue directions below regarding the same.

75The allegations concerning the request or requirement as the case may be, that the applicant undergo an IME along with the related allegations summarized above, can continue in the Tribunal’s process.

76It is apparent that there are factual disputes about the circumstances leading to the request/requirement for an IME, the absence or presence of agreement to the IME and it would appear the process followed. At this stage, it is not appropriate to make any legal or factual conclusions on these issues. Suffice to say, I am unable to conclude that there is no reasonable prospect that the allegations will succeed. The allegations will continue in the Tribunal’s process.

Alleged Comments/Actions by Dr. Cott

77In her submissions in the summary hearing, the applicant refers to allegations involving Dr. Cott, a physician that the applicant saw pursuant to the request/requirement for an IME. The applicant describes Dr. Cott as being hired by the respondent to conduct an evaluation of her.

78The applicant submits that Dr. Cott stated that she “threw a chair in the classroom”. In other material filed about her interactions with Dr. Cott in specific reference to this comment, the applicant states that she “wonders” if Dr. Cott had her confused with another client and refers to this comment and others as “unusual”. The applicant also alleges that Dr. Cott spent time talking about a woman (i.e. who I presume is not the applicant) who wanted to commit suicide then decided to speak to her around 5 p.m. The applicant characterizes both comments/actions as unwelcome and linked to “invisible disability”.

79Even assuming the respondent is liable for conduct of Dr. Cott, I find that there is no reasonable prospect that the applicant will be able to establish that these comments or actions, assuming they occurred, are incidents of discrimination. While it would appear that the applicant was concerned about the remark that she threw a chair and the comments or conduct involving what appears to be another patient, she has not explained how these comments and conduct constitute differential or disadvantageous treatment based on her disability.

Allegations regarding Job Interview, Transfer and Assignment in 2010-2011

80In the Application, the applicant alleges that as of “06/2011” she still cannot apply for jobs and then is transferred to another school. In her Reply, the applicant references a letter regarding a surplus placement (which was changed to an administrative placement), getting feedback from an interview and receiving an email on May 17, 2010 with a back to work plan which she did not have input on. Apart from the brief reference to being transferred, it does not appear that there was any previous reference to these “allegations” in the Application, although the incidents appear to have occurred before the Application was filed. Further, there are limited, if any, contextual details provided about these events and the applicant did not address them in her submissions in the summary hearing.

81The respondent did not provide a response to these specific “allegations” if they were intended as such nor address them in its submissions in the summary hearing.

82Assuming these were intended as allegations, I find that there is no reasonable prospect that the applicant will be able to establish that she has been treated differently and/or disadvantaged on the basis of disability in the incidents described. On the basis of the sparse details provided and in the absence of submissions, I have difficulty seeing any link between these “incidents” and disability.

83The allegations regarding the transfer(s), job interview(s) and assignment are dismissed.

Alleged Reprisal

84In the Application, the applicant checked off reprisal as a ground of discrimination. The alleged reprisal is that she is “worried” that she will be reduced to half pay again if she does not participate in an IME The applicant does not explain which IME she is referring to but I presume this allegation relates to the request/requirement made in paragraphs 72 to 76 above that the applicant participate in an IME with a physician chosen by the respondent.

85While as a factual issue, the request/requirement that the applicant participate in an IME is continuing in the Tribunal’s process, I do not find that there is a reasonable prospect that the applicant will be able to establish that her “worry” about a pay reduction is a reprisal within the meaning of the Code.

86First, it would appear that the applicant’s concern is speculative to the extent that she frames her allegation as a “worry”. Further and in any event, to the extent the respondent is alleged to be responsible for the applicant’s belief that she will suffer a pay reduction it would not appear to be a reprisal within the meaning of section 8 of the Code, i.e. related to the applicant claiming or enforcing a right under the Code; or, instituting or participating in proceedings under the Code; or, refusing to infringe the right of another person under the Code [s. 8]. See for example Mirea v. Canadian National Exhibition, 2009 HRTO 32; Chan v. Tai Pan Vacations, 2009 HRTO 273.

87In the circumstances, the applicant’s claim based on reprisal is dismissed.

Unwelcome comments by Union Staff Officer

88In reviewing the allegations, I have limited my review and reasons above to those allegations made against the named respondent or that may arguably be linked to the named respondent. In the course of her various filings and submissions in the summary hearing, the applicant makes what appears to be allegations against certain union representatives. To the extent the applicant is making allegations against these individuals, I have not addressed the allegations given that the union is not a named party.

Summary of Orders and Next Steps

89In summary, the Tribunal orders that the following allegations are dismissed on the basis that there is no reasonable prospect that the allegations will succeed:

• The allegation that on February 17, 2010, the principal wanted to know the applicant’s medication;
• The allegation that on September 2, 2010, the applicant was hit by a teacher when the teacher was opening a door;
• The allegation that during the first fire drill in 2010-2011, the principal engaged in unwelcome action by following the applicant into the school and observing the applicant;
• The allegations that during the school resource team meeting in September 2010, the applicant was criticized for poor decision making and was asked what she did with her time;
• The allegation that on October 4, 2010, the applicant was accused of being unfit to teach and was assigned home with pay;
• The allegations arising from the referenced job interview, the references to transfer(s) and the applicant’s placement/assignment;
• The allegations made in respect of Dr. Cott; and
• The allegation of reprisal and/or threat of reprisal.

90Subject to paragraph 91, the following allegations will continue in the Tribunal’s process:

• The allegation that on February 17, 2010, the principal told the applicant that “now I have these four men to myself”;
• The allegation that on September 1, 2010, the principal wanted to know the medication the applicant was on and the disability management officer demanded to know the medication the applicant was on stating that “I may just force you to tell me your medication”
• The allegation that that on September 2, 2010, an educational assistant pointed to the applicant’s lower leg and four prong cane while stating “stay away from her, she is nothing but trouble” and the principal stated “maybe you should go sit down”; and
• The allegation that on January 13, 2011, the applicant was told that she had to undergo an IME and the related allegations including that she was asked to sign a waiver/consent form that permitted the executive officer to see the applicant’s medical records, that her employment information was sent to the physician before the waiver was signed, that she was advised that the respondent wanted a diagnosis and that the package sent to the second physician contained no questions pertaining to accommodations.

91Within 14 days of the date of this Interim Decision, the applicant shall:

• Confirm her intentions in writing to the Tribunal to continue with the allegations that remain, with a copy to the respondent and the intervenor; and
• Complete and file a Request For Order During Proceeding if she seeks to amend the Application to include the additional grounds as referred to in paragraph 40 above.

92Subject to the applicant’s compliance with paragraph 91 above, the Tribunal directs:

• The respondent shall file an amended Response to the allegations not yet responded to within 30 days of the date of the receipt of the applicant confirming her continuing intentions to proceed with the Application; and
• The applicant may file a Reply to the respondent’s amended Response within 14 days of the date of the receipt of the amended Response.

93Absent receiving written confirmation that the applicant wishes to continue with the Application, the Application may be dismissed as abandoned.