Noonan v. Barrie Police Services Board, 2014 HRTO 1815

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Wendy Noonan Applicant

-and-

Barrie Police Services Board Respondent

INTERIM DECISION

Adjudicator: Sheri Price Date: December 22, 2014 Citation: 2014 HRTO 1815 Indexed as: Noonan v. Barrie Police Services Board

WRITTEN SUBMISSIONS

Wendy Noonan, Applicant Allan Kaufman, Counsel

Barrie Police Services Board and Tim Conroy, Respondents Glenn Christie, Counsel

1This is an Application under s.34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (“the Code”), alleging discrimination against the applicant because of disability with respect to employment. The Application is scheduled to be heard on February 19 and 20, 2015, in Toronto.

REQUEST TO REMOVE PERSONAL RESPONDENT

2In the Application that she filed with the Tribunal, the applicant named the Barrie Police Services Board and Tim Conroy, a sergeant with the Barrie Police Service, as respondents to her Application.

3The respondents filed a Request for an Order during Proceedings seeking to have the personal respondent removed as a party to the Application. The applicant consents to this request. On consent of the parties, the personal respondent is removed as a party to the Application.

REQUEST TO STRIKE

4In her Application, the applicant makes a number of allegations under the heading “Background Details for my Current Human Rights Complaint”. In particular, in the “Background Details” section of her Application, the applicant pleads, in considerable detail, that she experienced certain workplace and workplace-related incidents that caused her to develop a disability. The applicant then goes on to describe what she identifies as her “specific human rights claim.” In particular, the applicant alleges that the respondent employer infringed her rights under the Code when it failed to return the applicant to modified work when she provided medical documentation indicating that she was able to do so in or around the spring of 2014.

5The respondent has filed a Request for an Order during Proceedings seeking to have all of the allegations in the “Background Details” section of the Application struck from the Application on the basis that they are not relevant to the issue to be determined by the Tribunal, namely whether the applicant was improperly denied the opportunity to return to work in 2014. In addition, the respondent contends that the “Background Details” should be dismissed pursuant to s.34(1) of the Code because they are untimely. Finally, the respondent submits that the applicant should not be permitted to lead evidence in support of the “Background Details” allegations because they serve no legal or proper purpose.

6The applicant opposes the respondent’s request and maintains that the allegations set out in the “Background Details” section of her Application are relevant to the issues to be determined in this case. While acknowledging that the “legal ground” for the Application is the respondent’s failure and/or refusal to return the applicant to modified work in 2014, the applicant submits that evidence about the manner in which a co-worker allegedly treated her from 2007 to 2012, which treatment allegedly caused the applicant’s disability, will be both relevant and necessary at the hearing.

7I will first address the respondent’s argument that the allegations in the “Background Details” section of the Application ought to be dismissed on account of delay, pursuant to s.34(1) of the Code. Given that the incidents identified as “Background Details” are not put forward by the applicant as alleged Code infringements upon which the Application is based, and in respect of which the applicant seeks a remedy, they are not incidents “to which the Application relates” within the meaning of s. 34(1) of the Code. It is therefore neither necessary nor appropriate to determine whether the allegations in question ought to be dismissed on the basis of delay.

8Moreover, given that the incidents referred to in the “Background Details” section of the Application are not put forward by the applicant as alleged Code infringements upon which the Application is based, then, in my view, the extent to which the applicant may refer to them at the hearing is an evidentiary matter to be determined by the hearing adjudicator, taking into account the relevance of the proposed evidence to the issues to be determined in the Application, among other factors, including the respondent’s objection, if it is pursued, that the proposed evidence serves no legal or proper purpose.

9That said, in the interest of providing some guidance to the parties, I note that the cause of an individual’s disability is generally not relevant in determining whether his or her disability-related needs have been accommodated up to the point of undue hardship. Accordingly, it is not apparent to me at this point that evidence about the cause of the applicant’s disability would be relevant to the issue whether the respondent discriminated against the applicant by failing to return her to work in 2014.

10I note that the applicant submits that she will be required to lead evidence regarding the incidents described in the “Background Details” section of her Application in order to establish the existence of her disability and the nature of her restrictions. However, based on my review of the material, it is not clear that the respondent denies that the applicant had a disability during the relevant time frame in 2014. In its Response, the respondent pleads that that medical information provided by the applicant in 2014, as well as an independent examination arranged by it, indicated that the applicant was not fit to return to work in any capacity during the relevant time frame. The Tribunal may require the parties to clarify their respective positions at the hearing.

DIRECTIONS

11The personal respondent is removed as a party to the proceeding and the style of cause is amended accordingly.

12The extent to which the applicant may refer to allegations contained in the “Background Details” section of her Application is an evidentiary matter to be determined by the hearing adjudicator.