MacPherson v. Leon’s Furniture Limited, 2014 HRTO 1649

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Louis MacPherson Applicant

-and-

Leon’s Furniture Limited Respondent

INTERIM DECISION

Adjudicator: Mary Truemner Date: November 13, 2014 Citation: 2014 HRTO 1649 Indexed as: MacPherson v. Leon’s Furniture Limited

APPEARANCES

Louis MacPherson, Applicant Self-represented

Leon’s Furniture Limited, Respondent Kate McNeill-Keller, Counsel

Introduction

1This is an Application that was filed September 13, 2013. It alleges discrimination with respect to employment because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The hearing has been scheduled for December 2 and 3, 2014. This Interim Decision deals with the respondent’s request that the Tribunal dismiss allegations pertaining to events which occurred more than a year before the Application was filed, and which they argue are therefore out of time. It also provides directions with respect to next steps and what the parties can expect at the hearing.

background

2The Tribunal has issued several previous Interim Decisions and Case Assessment Directions due to a myriad of requests and preliminary issues. Most recently, it scheduled a conference call for November 6, 2014 to deal with case management. The parties attended, and we dealt with a number of outstanding issues, including:

a. The applicant confirmed that he was not requesting to record the proceedings;

b. The applicant confirmed what he alleges the respondent did to violate the Code, thus clarifying what in the narrative of the Application constitutes his allegations of discrimination; and

c. The parties clarified their positions with respect to the request by the respondent to dismiss parts of the Application because they are out of time.

the applicant’s summary of Allegations

3The applicant confirmed on the conference call what allegations of discrimination he is making against the respondent. First, he confirmed that he is alleging that the respondent discriminated against him by failing to accommodate his disability when the applicant’s managers, from September 2010 until his last day of working at the store in 2013, continually pressured him to work when he should not have been working because of illness related to his disability.

4The applicant explained on the conference call that he received long term disability benefits (“LTD benefits”) in 2012 until May 1, 2012, and not “until June of 2012” as indicated in the Application. The applicant withdrew his allegation that the reduced amount of LTD benefits during that period of time was discriminatory because they were calculated on the basis of his work history during a time when he was ill.

5The applicant confirmed that his Application, which references “having to provide an absurd volume of sick letters”, includes an allegation that the respondent failed to accommodate his disability because management unreasonably asked for more medical letters than were necessary to justify his need to take time off for his health in 2013.

6Finally, the applicant confirmed that his Application includes an allegation that the respondent discriminated against him by providing the respondent’s insurer with information in 2013 about the amount of salary for the applicant’s actual hours worked instead of the salary for hours that he could have worked if he had not been sick. On the basis of his salary and hours, the insurer provided benefits that the applicant alleges were unjustly low.

delay

7Section 34(1) of the Code provides that a person may file an application alleging that his or her rights under the Code have been infringed within one year of the incident, or the last incident in a series of incidents, of alleged discrimination. Section 34(1) of the Code provides as follows:

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.

8The respondent confirmed that it seeks to have dismissed as untimely any allegations pertaining to events before September 3, 2012, the date that is one year before the date that the Application was filed. The only allegation that is not entirely within the one year limitation period is the one which alleges that the respondent pressured the applicant to work, even when he was too ill to work, from September 2010 until he stopped working in 2013. The Application provides some details with respect to the period of time of alleged pressure which, if not part of a series of events, would otherwise be out of time:

It was not uncommon from the beginning of 2008 – 2010 to miss a week or more at a time of work to rest. Despite my better judgment, pressure to work – when I knew I was on the verge of a flare-up of poor health – would inevitably become a self-fulfilling prophecy. I would give in to my employer and thus push myself physically over the edge and get sick. This cycle repeated itself numerous times in 2008/09/10, culminating in another period of Disability [leave] beginning in April of 2011

I remained on LTD until June of 2012 and once again resumed a graduated return to work, however the new General Manager… pressured me to return to full-time work within 1 month. He also exerted pressure on the Sales Manager to extract as much work from me as possible. By July, I was working full-time. I lasted approximately 4 months.

In November, 2012, I contacted the District Supervisor…

9The Application goes on to describe how there remained pressure to work more shifts than those the applicant agreed to, even after the District Supervisor’s intervention in November 2012, a time well within the one year period before the Application was filed September 3, 2013. The question, therefore, is whether the alleged incidents of pressure to work prior to September 3, 2012 are part of a series of incidents linked with the alleged incidents of pressure to work that are timely.

10The respondent argues that they are not timely. Counsel for the respondent relied upon the written submissions she filed on September 9, 2014 with the respondent’s Response to Request for an Order which basically argue that the pre-September 2012 incidents described in the Application do not form a series of events. The applicant argued that the pressure was continuous from 2010 until his last day of work, and it is therefore within time, given that the pressure continued until mere months before he filed his Application.

11While the Application does not provide the details of the alleged incidents of pressure to work despite a disability-related alleged need to not work, some of the material the applicant filed contains details which satisfy me that the alleged pressure to work from September 2010 to 2013 was consistently related to the respondent’s alleged scheduling of long days or many consecutive days, sometimes in contravention of medical restrictions as communicated by the applicant’s doctor. For example, I note the applicant’s submissions contained in his Form 11, Response to a Request for Order, filed October 27, 2014. They contain references to shifts the applicant worked in the Spring of 2012 when the respondent allegedly required him to work hours in excess of medical restrictions. Those submissions then allege the scheduling of long shifts and too many consecutive days, scheduling which continues into 2013 despite alleged medical restrictions.

12The applicant agreed that sometimes the pressure was simply economic because, if he did not work, he would not be able to support himself, but he also argued that some pressure was implicit because the respondent has a policy to fire a salesperson who does not meet sales targets three times. It appears to me that evidence is required on the issue of pressure to work before I can decide the request to dismiss allegations related to pressure from September 2010 to September 3, 2012.

13I will not at this time deal with the respondent’s request to dismiss allegations with respect to the scheduling of hours prior to September 2012, but the respondent is not prejudiced from making the request again once the applicant has completed his evidence.

representation

14The applicant sent an email message to the Tribunal on November 10, 2014, which appears to indicate that he believes he may not retain a lawyer, who is representing him in a civil matter before the courts, to represent him in the present proceeding, even on a limited retainer for the purposes of providing advice during the mediation-adjudication. There appears to be no basis for his belief, but the applicant must note that the Tribunal cannot provide legal advice, and his civil lawyer will no doubt be able to provide him with advice on this issue. The Tribunal’s Rules with respect to representation provide as follows:

A9 REPRESENTATIVES

A9.1 Parties may be self-represented, represented by a person licensed by the Law Society of Upper Canada or by an unlicensed person where permitted by the Law Society Act and its regulations and by-laws.

A9.2 Individuals representing a party before a tribunal have duties to both the tribunal and the party they are representing. Representatives must provide contact information to the tribunal and be available to be contacted promptly. Representatives are responsible for conveying tribunal communications and directions to their client. Representatives should be familiar with tribunal rules and procedures, communicate the tribunal's expectations to their client, and provide timely responses to the other parties and the tribunal.

A9.3 Where a representative begins or ceases to act for a client, the representative must immediately advise the tribunal and the other parties in writing, and provide up-to-date contact information for the party and any new representative. Where a representative ceases to act for a client the tribunal may issue directions to ensure fairness to all parties and to prevent undue delay of proceedings.

A9.4 The tribunal may disqualify a representative from appearing before it where the representative's continued appearance would lead to an abuse of process.

15The applicant has more recently filed a confirmation that the lawyer who is representing him in the court proceeding will be attending, but not representing him at the mediation-adjudication on December 2, 2014.

directions

16The respondent is directed to deliver to the applicant within seven (7) days all documents arguably relevant to alleged scheduling pressure on the applicant to work from September 2010 to September 3, 2012.

17The applicant and respondent are directed to file within ten (10) days those documents related to pressure that they intend to rely upon at the hearing.

18The parties have agreed to use the first morning of the hearing for mediation-adjudication to try settling the Application. Attached to this Interim Decision is a form which the parties and anyone representing or participating as support in the mediation-adjudication must read and sign; otherwise, they will not be permitted to participate in the mediation-adjudication.

19Should the Application not settle at the mediation-adjudication on the first day of the hearing, then the applicant must be prepared to commence his testimony. No other witnesses need appear on the December 2014 hearing dates. Also, the parties must be prepared at the commencement of the hearing to discuss:

• the bifurcation of the hearing so that evidence with respect to remedy will only be dealt with after a decision on the merits has been made;

• which witnesses are relevant to the proceeding and what they are expected to say.