Dallas v. Drake International Inc., 2014 HRTO 305

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Carol Dallas

Applicant

-and-

Drake International Inc.

Respondent

DECISION

Adjudicator: Dawn J. Kershaw

Date: March 7, 2014

Citation: 2014 HRTO 305

Indexed as: Dallas v. Drake International Inc.

WRITTEN SUBMISSIONS

Carol Dallas, Applicant

David Ingraham, Representative

Drake International Inc., Respondent

Karen R. Bock, Counsel

Introduction

1This Decision deals with a request by the respondent:

a. to dismiss this Application for delay;

b. to dismiss this Application for disclosing no violation of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”);

c. to dismiss this Application in accordance with s. 45.1 of the Code because another proceeding has appropriately dealt with the substance of the Application; or

d. in the alternative, to defer the Application because of an ongoing WSIB issue.

2Both the applicant and respondent provided written submissions.

background

3The applicant began working for the respondent on August 4, 2011 on temporary work assignments, and was injured on a job on February 20, 2012. She filed an Application on August 26, 2013 under s. 34 of the Code, alleging discrimination with respect to employment because of disability.

4Although the Application provides little detail, it appears that the applicant alleges the following:

a. four weeks after the workplace accident, the respondent harassed the applicant with phone calls to try and find out about her health;

b. the respondent “threatened sever [sic] levels of reprisals by threatening the applicant to withhold compensation resulting from the work place injury” by knowingly ceasing to pay the applicant WSIB benefits for a period of time, allegedly in August and November, 2012;

c. the respondent withdrew money from the applicant’s bank account in February, 2013.

d. the respondent discriminated against the applicant in that its accommodation attempts did not meet the standard of undue hardship, with the last act of alleged discrimination occurring on October 15, 2012

e. the respondent did try to accommodate the applicant in or around October, 2012 but the attempt was “demeaning and insulting;

5The applicant alleges in her Application that she was off work from February 20, 2012 to August 23, 2013, but had a temporary work assignment for two hours a day from May 15, 2012 to August 21, 2012. In August 2012 WSIB advised the respondent of new and additional restrictions and limitations for the applicant.

6The respondent found the applicant another work assignment that was to begin on October 9, 2012, but on October 12, 2012 WSIB advised the respondent that the applicant could not return to work. Ten months later, in August 2013, WSIB advised the respondent that the applicant would be able to return to work soon. In December 2013 WSIB again advised the respondent that the applicant could not return to work.

analysis

7In this case, many of the events took place more than a year prior to the filing of the Application on August 26, 2013. In fact, in my view, there are no timely events that have any connection to the Code.

No Connection to a Code Ground

Reprisal – Withholding WSIB payments

8The applicant alleges that the respondent withheld WSIB payments to the applicant in August and November 2012, and provided a document that ostensibly shows this. However, this document shows only that the applicant called WSIB in May 2012 because her WSIB payment had not been deposited into her account. The applicant has failed to show how this alleged withholding of money has any connection to a Code ground, and, in any event, has shown no connection to the respondent. This allegation is not within the jurisdiction of the Tribunal.

Withdrawal of Money from the Applicant’s Bank Account

9The applicant alleges that the respondent withdrew money from her bank account and attaches a bank statement showing a withdrawal in February 2013. The applicant fails to allege that her disability was a factor in the respondent’s action.

No or Insufficient Accommodation

10The applicant alleges both that the respondent did not accommodate her and also that its efforts to accommodate her were insufficient.

11The respondent found the applicant modified work which she did on a part-time basis from May 15 to August 21, 2012. The applicant alleges this was not appropriate. The parties agree that the respondent next found the applicant modified work which was to begin on October 9, 2012. However, the applicant never attended at this workplace and on October 12, 2012 WSIB advised the respondent that the applicant could not return to work.

12With respect to the post-August 2012 period, the applicant makes no allegations of discrimination; in other words, she has provided no information with respect to how she suffered any adverse treatment as a result of the respondent’s actions.

13The applicant makes no specific allegations of any failure by the respondent to find her work between August 21 and October 9, 2012. As of October 12, 2012 the applicant alleges her treatment providers have advised that she was (and continues to be) unable to return to work. On the basis of this information, there is no allegation that the respondent has discriminated against her by failing to return her to work.

Delay

14The respondent argues that the majority of the significant events in the Application occurred prior to August 26, 2012 and are out of time.

15Section 34 of the Code requires an application to be made within a year of the last alleged incident of discrimination or, if a series of incidents is alleged, within a year of the last incident in the series. The Tribunal can make an exception to this rule if it is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay. Section 34 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.

Telephone Calls

16With respect to the alleged harassing telephone calls, these were made four weeks after the accident, in or about March 2012, more than a year prior to the commencement of the Application, and are therefore out of time. There is no evidence to support any good faith explanation for the delay.

Accommodated Work

17The applicant was provided with modified work up until August 21, 2012. If she alleges that she was discriminated against by the provision of that work which she alleges was inappropriate, this allegation is out of time.

18The applicant’s allegations disclose no evidence to support any discriminatory acts by the respondent that are timely. There is no evidence to support finding any good faith explanation for the delay. Therefore, the Application is dismissed.

order

19The Application is dismissed.