HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Olumuyiwa Falodun
Applicant
-and-
Andorra Building Maintenance Ltd., Toronto Cricket Skating and Curling Club, and Dr. Victor Wai-Lee Chiu
Respondents
A N D B E T W E E N:
Olumuyiwa Falodun
Applicant
-and-
Sunnybrook Health Sciences Centre
Respondent
INTERIM DECISION
Adjudicator: Ken Bhattacharjee
Indexed as: Falodun v. Andorra Building Maintenance Ltd.
APPEARANCES
Olumuyiwa Falodun, Applicant
Self-represented
Andorra Building Maintenance Ltd., Respondent
Michael Alexander, Counsel
Toronto Cricket Skating and Curling Club, Respondent
Assunta Mazzotta, Counsel
Dr. Victor Wai-Lee Chiu, Respondent
Yashoda Ranganathan, Counsel
Sunnybrook Health Sciences Centre, Respondent
Maria McDonald, Counsel
Introduction
1The applicant filed two Applications under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), which alleged that the respondents subjected him to discrimination and reprisals. The respondents filed Responses, which denied the allegations of discrimination and reprisal.
2The purpose of this Decision is to decide whether the Applications should be dismissed on a preliminary basis because they have no reasonable prospect of success. The parties attended a summary hearing where they had the opportunity to make oral submissions and present documents and cases, which addressed this issue.
3I have decided to dismiss the first Application (No. 2012-12997-I) in whole and the second Application (No. 2013-13769-I) in part. The main allegation in the second Application will proceed to a mediation, and, if necessary, a merits hearing. The following are my reasons.
BACKGROUND
4Unless otherwise noted, the following facts were not contested. The applicant is a Black man of African descent, who has a mental disability. In early 2012, Andorra Building Maintenance Ltd. (“Andorra”), which is a cleaning company, hired the applicant to work as a janitor. He did not disclose to Andorra at that time that he had a mental disability.
5In the early morning hours of October 2, 2012, the applicant was working on the premises of the Toronto Cricket Skating and Curling Club (the “TCSCC”), which is one of Andorra’s clients, when he became trapped in an elevator. His co-workers tried to assist him, but were unable to open the door. A TCSCC employee was called to the premises and opened the door. He then called an ambulance because the applicant was experiencing chest pains.
6The ambulance brought the applicant to the hospital emergency department of Sunnybrook Health Sciences Centre (“Sunnybrook”). He was treated by a physician for chest pain and was discharged the same morning. He did not disclose to the physician that he had a mental disability.
7On the same day, an elevator technician inspected the elevator on the TCSCC’s premises, and issued a Maintenance Record, which stated that the elevator worked fine.
8The applicant continued to experience chest pains at home, and late in the evening, he returned to Sunnybrook’s emergency department. He was examined again by a physician. There is a dispute between the applicant and Sunnybrook about whether Sunnybrook then became aware that he had a mental disability.
9Sunnybrook states that the physician spoke to the applicant about the possibility that his chest pain may be related to anxiety, but he denied that he had any mental health problems. Sunnybrook also states that the applicant was offered and declined a referral to its crisis team for psychiatric services. The applicant, on the other hand, disagrees that he denied having mental health problems; rather, he states that the physician was busy and did not give him an opportunity to discuss his mental health history.
10The treating physician discharged the applicant, but he refused to leave. As a result, at about 1:45 a.m. on October 3, 2012, he was forcibly removed from the hospital by two security guards and left at a bus stop. Sunnybrook has no knowledge of what happened to the applicant after he was removed from the hospital. The applicant states that he was unable to take public transportation or telephone anyone because he did not have any money or a cell phone. As a result, he states, he had to walk from the hospital, which is in Toronto, to his home, which is in Scarborough. He states that he spent hours wandering the streets and begging strangers for directions, and did not arrive home until daybreak.
11Later on October 3, 2012, the applicant sent an email to Andorra, which stated that he had been treated by a doctor at Sunnybrook for “shock”, and that the doctor had given him one day of sick leave. He also provided a note from Sunnybrook’s emergency department to Andorra, which stated that he had been examined and advised to return to work on October 3, 2012. The note did not indicate that the applicant had any restrictions or limitations with respect to his job duties.
12The applicant returned to work on October 6, 2012, and was assigned to work at another building. There is a dispute between Andorra and the applicant about what happened there. Andorra states that it assigned him to that particular building because it had escalators which he could use instead of elevators to move from floor to floor. The applicant, on the other hand, states that he had to use the elevator to access the tenth floor, which is where Andorra’s staff lounge/cafeteria and reporting station were located.
13On October 7, 2012, the applicant was off sick again. On October 8, 2012, he attended the Scarborough Hospital. On October 9, 2012, he provided a hospital note to Andorra, which stated that he was treated on October 8, 2012, and may return to work on “light duties”. The note did not indicate what specific restrictions or limitations the applicant had with respect to his job duties.
14On October 10, 2012, an Andorra manager told the applicant to visit his family doctor to have a Functional Abilities Form filled out. The applicant visited his family doctor, Dr. Victor Wai-Lee Chiu, who examined him and filled out a Workplace Safety and Insurance Board (“WSIB”) Health Professional’s Report (the “Report”). The Report directs the treating physician to send pages two and three to the WSIB, and to provide a copy of only page three to the worker, who, in turn, will provide it to the employer for return to work planning. There is a dispute between Dr. Chiu and the applicant about what happened next.
15Dr. Chiu states that the applicant told him that he wanted to personally deliver a copy of the Report to Andorra. As a result, Dr. Chiu states, he told the applicant to bring the Report to the front desk staff, who would make a copy of it for him. The applicant, on the other hand, states that Dr. Chiu told him to personally deliver a copy of the Report to Andorra. He states that Dr. Chiu then handed the Report to his nurse. He states that the front desk staff then gave him a copy of the Report to deliver to Andorra.
16On October 11, 2012, the applicant sent the entire Report to Andorra and the WSIB. On page 2, under “C. Clinical Information Section, 1. Area of Injury/Illness”, the box for “Head” was checked off, and under “2. Description of Injury/Illness Physical Examination Findings”, the boxes for “Pain at Rest/Night Pain”, “Psychological”, and “Repetitive Strain Injury” were checked off. Under “4. Diagnosis”, “anxiety disorder” was written in the space. Under “D. Treatment Plan, 1. What is the treatment plan… including prescribed mediation”, “Cipralex 10 mg od” was written in the space. On page 3, under “E. Return to Work Information… 4. Please indicate the worker’s status and task limitations in relation to the workplace injury and diagnosis”, “light duty for 2 weeks” was written in the space, but there was no indication what specific restrictions or limitations the applicant had with respect to his job duties.
17On the same day, Andorra also sent the Employer’s Report of Injury/Disease with respect to the workplace incident involving the applicant on October 2, 2012 to the WSIB.
18The WSIB subsequently requested that Sunnybrook provide it with copies of the applicant’s hospital records for October 2-3, 2012 in order to process the applicant’s claim for benefits. Sunnybrook complied with this request.
19On October 12, 2012, an Andorra manager called Dr. Chiu to discuss the Report. During the discussion, Dr. Chiu informed the manager that he had not checked off the boxes in C. 1. and 2. of page 2 of the Report. He then confirmed the same in writing. There is a dispute between Dr. Chiu and the applicant about the contents of the Report.
20Dr. Chiu states that the checked off boxes were inconsistent with his clinical impression of the applicant, and that they must have been checked off after he gave the applicant the Report to bring to the front desk, but before the front desk staff took the Report from the applicant to copy, because the boxes were also checked off in the copy of the Report that his office retained. The applicant, on the other hand, states that the boxes must have been checked off by Dr. Chiu. He denies that he altered the Report by checking off the boxes himself.
21Two Andorra managers then met with the applicant on the same day, and asked him whether he had altered the Report. The applicant denied that he had altered the Report. Later in the day, an Andorra manager called the applicant and informed him that his employment was terminated because of the alteration of the Report.
22The applicant then went to Dr. Chiu’s office. Dr. Chiu’s front desk staff showed the applicant Dr. Chiu’s written confirmation to Andorra that he had not checked off certain boxes in the Report. The front desk staff also showed the applicant the copy of the Report that Dr. Chiu’s office had retained. The applicant then informed the staff that he would be taking legal action against Dr. Chiu.
23On October 15, 2012, the applicant sent Andorra and the TCSCC an email, which alleged that Andorra had engaged in unfair employment practices, including harassment, against him contrary to the Employment Standards Act, the Code, and the Occupational Health and Safety Act; the TCSCC had operated an unsafe elevator, and concealed information about its safe operation from the relevant authorities (the Toronto Fire Chief), whom it was accountable to; and Dr. Chiu had libelled him by denying that he had filled out the entire Report. He concluded by stating that the above “defendants” were required to file defences with the appropriate authorities within five business days.
24On the same day, the TCSCC informed Andorra that it would not allow the applicant to enter its premises. Andorra subsequently notified the applicant of this.
25On October 18, 2012, the applicant received a package from Andorra, which included a termination of employment letter, a Record of Employment, and a final pay cheque.
26On October 29, 2012, the applicant met with Dr. Chiu, and informed him that Andorra had terminated his employment because of the alleged alterations of the Report. Dr. Chiu maintained that he had not filled out certain sections of the Report that the applicant had submitted to Andorra. The applicant told Dr. Chiu that he would be taking legal action against him, and Dr. Chiu told the applicant that he should find a new doctor.
27On October 31, 2012, the applicant sent Dr. Chiu a letter, which alleged that Dr. Chiu had breached doctor-patient confidentiality and provided distorted information to Andorra, which led to the wrongful termination of his employment. He also demanded that Dr. Chiu respond within seven days.
28On November 1, 2012, the applicant filed an Application with the Ontario Labour Relations Board (the “OLRB”) against Andorra and Dr. Chiu, but then withdrew it approximately two weeks later.
29On November 15, 2012, the applicant filed an Application with this Tribunal, which alleged that Andorra, the TCSCC and Dr. Chiu had discriminated against him with respect to employment because of his race and disability, and subjected him to reprisals. He also made the following statement: “Lastly, if proper justice is not administered, as a psychiatric patient, I cannot really guarantee what my next line of action will be.” On November 23, 2012, the Tribunal served the Application on Andorra, the TCSCC and Dr. Chiu by regular mail.
30On November 30, 2012, the WSIB issued a decision, which denied the applicant’s claim for benefits.
31On December 6, 2012, the applicant met with Dr. Chiu, who informed the applicant that he would be terminating their doctor-patient relationship effective January 18, 2013 because of a breakdown in trust. He also sent him a letter confirming the same and providing advice on how to find a new doctor.
32On December 20, 2012, the applicant sent Andorra a letter, which alleged, among other things, that Andorra had tried to lure him into criminal acts; threatened to bring criminal proceedings against Andorra; and offered to forego his legal rights in exchange for a monetary settlement.
33On the same day, Andorra complained to the police that the applicant had made threats in his human rights Application and the letter about what he might do if he did not received financial compensation in the proceeding before this Tribunal. A police officer contacted the applicant and cautioned him.
34On January 10 and 11, 2013, Andorra, the TCSCC and Dr. Chiu filed their respective Responses to the Application. The Responses denied the allegations of discrimination and reprisal. On January 22, 2013, the applicant filed a Reply to the Responses.
35On February 26, 2013, the applicant filed an Application with this Tribunal, which alleged that Sunnybrook had discriminated against him with respect to services because of his disability, and subjected him to reprisals.
36On April 16, 2013, Sunnybrook filed a Response, which denied the allegations of discrimination and reprisal. On April 25, 2013, the applicant filed a Reply to the Response.
37In April 2013, the applicant applied for a job with another employer, but was not successful because he did not pass the security clearance.
38Andorra, the TCSCC and Dr. Chiu all filed Requests for Summary Hearing, which requested that the Application be dismissed on a preliminary basis because it has no reasonable prospect of success. The applicant filed Responses, which opposed the Requests.
39On June 13, 2013, the Tribunal issued a Case Assessment Direction, which directed that a summary hearing be held to decide whether both Applications should be dismissed on a preliminary basis because they have no reasonable prospect of success.
40In advance of the summary hearing, all the parties filed written submissions, documents, and case law. The applicant also filed numerous Requests for Orders during Proceeding (“RFOPs”) to add new allegations of discrimination and further remedies, and to remove Andorra’s legal counsel as the representative on record and add him as a respondent to the first Application because, in the applicant’s view, counsel’s written submissions falsely accused him of altering Dr. Chiu’s Report and committing a criminal act (fraud) by doing so.
41The applicant’s pleadings, written submissions, and RFOPs contain Code-related allegations, but they are mixed in with allegations of unfair labour practices, unsafe work conditions, violations of privacy, defamation, professional misconduct, and criminal activities. As such, it is challenging to discern what some of the specific Code-related allegations are. Based on my review of all the applicant’s materials, I understand his Code-related allegations to be the following:
On October 6, 2012, Andorra discriminated against him with respect to employment because of his disability by failing to accommodate his disability-related needs when it assigned him to a building where he had to use an elevator.
On October 12, 2012, Andorra discriminated against him with respect to employment because of his race and disability by terminating his employment after it found out that he had an anxiety disorder.
On October 12, 2012, Andorra subjected him to a reprisal by terminating his employment after it found out that he had an anxiety disorder.
From October 15, 2012 onwards, Andorra discriminated against him with respect to employment by failing to respond to his complaint of discrimination.
On December 20, 2012, Andorra subjected him to a reprisal by making false complaints to the police about him.
In October 2012, the TCSCC discriminated against him with respect to employment because of his disability by blaming him for the malfunctioning elevator, and by barring him from its premises, which was a refusal to accommodate his disability-related needs.
In October 2012, the TCSCC subjected him to a reprisal by barring him from its premises.
On October 10-12, 2012, Dr. Chiu discriminated against him with respect to employment because of his disability by breaching doctor-patient confidentiality and providing distorted information to Andorra, which led to the wrongful termination of his employment.
On December 6, 2012, Dr. Chiu subjected him to a reprisal by terminating the doctor-patient relationship because he filed a human rights Application.
On October 2-3, 2012, Sunnybrook discriminated against him with respect to services because of his disability during his second visit by failing to accommodate his mental health-related needs when it forcibly removed him from the hospital in the middle of the night and left him at a bus stop without determining whether he had money or other means to get home.
In October/November 2012, Sunnybrook subjected him to a reprisal by providing hospital records to the WSIB, which indicated that he had been forcibly removed from the hospital and depicted him as a public nuisance.
42The summary hearing took place on September 5, 2013. I heard the parties’ oral submissions and reserved my decision.
ANALYSIS
Reasonable Prospect of Success
Law
43The allegations in the Applications appear to relate to ss. 1, 5, 8, 9, and 17 of the Code, which provide:
Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status or disability.
(1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.
Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing.
No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.
(1) A right of a person under this Act is not infringed for the reason only that the person is incapable of performing or fulfilling the essential duties or requirements attending the exercise of the right because of disability.
(2) No tribunal or court shall find a person incapable unless it is satisfied that the needs of the person cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.
44Rule 19A of the Tribunal’s Rules of Procedure provides for a summary hearing, following which an application may be dismissed, in whole or in part, if the Tribunal finds that there is no reasonable prospect that the application or part of the application will succeed. The approach to deciding whether an application has a reasonable prospect of success following a summary hearing was explained as follows in Dabic v. Windsor Police Service, 2010 HRTO 1994 (“Dabic”) at paras. 8-10:
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.
In considering what evidence is reasonably available to the applicant, the Tribunal must be attentive to the fact that in some cases of alleged discrimination, information about the reasons for the actions taken by a respondent are within the sole knowledge of the respondent. Evidence about the reasons for actions taken by a respondent may sometimes come through the disclosure process and through cross-examination of the people involved. The Tribunal must consider whether there is a reasonable prospect that such evidence may lead to a finding of discrimination. However, when there is no reasonable prospect that any such evidence could allow the applicant to prove his or her case on a balance of probabilities, the application must be dismissed following the summary hearing.
45The Tribunal 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. See Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389 at para. 17.
Allegations Against Andorra
46I will begin with the applicant’s allegation that on October 6, 2012, Andorra discriminated against him with respect to employment because of his disability by failing to accommodate his disability-related needs when it assigned him to a building where he had to use an elevator.
47In his submissions, the applicant stated that this allegation has a reasonable prospect of success because, rather than assigning him back to work on the premises of the TCSCC, which had two floors and where he could have avoided using the elevator, Andorra assigned him to multi-story high rise building, where had to use an elevator.
48In my view, this allegation has no reasonable prospect of success because, even if it is true that the October 2, 2012 elevator incident exacerbated or created the applicant’s anxiety disorder, and Andorra then assigned him to a building where he had to use an elevator on October 6, 2012, he did not point to any evidence that can show that Andorra knew that he had an anxiety disorder or disability-related restrictions or limitations on October 6, 2012.
49The materials before me show that by October 6, 2012, the only information that the applicant had provided to Andorra was an email, which merely stated that he had been treated by a doctor for “shock”, and a doctor’s note, which merely stated that he was able to return to work. Neither the email nor the doctor’s note indicated that he had an anxiety disorder or disability-related restrictions or limitations with respect to his job duties. The materials before me also show that the applicant sent Dr. Chiu’s Report, which disclosed that he had an anxiety disorder, to Andorra on October 11, 2012, which was five days later.
50In short, the applicant did not point to any evidence that can show a link between Andorra’s alleged conduct and his disability.
51In these circumstances, I find, pursuant to the second branch of the Dabic test, that there is no reasonable prospect that the applicant can prove, on a balance of probabilities, that Andorra violated the Code when it assigned him to a building where he allegedly had to use an elevator.
52I turn next to the applicant’s allegation that on October 12, 2012, Andorra discriminated against him with respect to employment because of his race and disability by terminating his employment after it found out that he had an anxiety disorder.
53In his submissions, the applicant stated that this allegation has a reasonable prospect of success because Andorra has been able to flourish as a result of mainly employing immigrants and refugees who are not aware of their rights, and during the October 12, 2012 meeting, Andorra’s managers focused solely on whether or not he had altered Dr. Chiu’s Report, and refused to discuss accommodating his disability-related needs. He also stated that the medication that he was given to treat his anxiety disorder had side effects, such as dizziness and drowsiness, which would have affected his work performance, particularly during night shifts.
54The applicant’s allegation of discrimination based on race can be dealt with fairly briefly because he is merely speculating and opining about the link between the termination of his employment and his race. He did not point to any evidence that can show a link between the termination and his race. I therefore find, pursuant to the second branch of the Dabic test, that this allegation has no reasonable prospect of success.
55The main issue to decide is whether the applicant’s allegation of discrimination based on disability has a reasonable prospect of success. In my view, it does not because, although Andorra terminated the applicant’s employment soon after learning that he had an anxiety disorder and was taking anti-anxiety medication, it is undisputed that Dr. Chiu had also provided information to Andorra, which indicated that the applicant had altered Dr. Chiu’s Report before submitting it to Andorra. In these circumstances, it is not enough, in my view, to merely point out that Andorra found out that he had an anxiety disorder and was taking anti-anxiety medication shortly before terminating his employment.
56The applicant did not point to any further evidence that can show a link between the termination of his employment and his disability.
57In these circumstances, I find, pursuant to the second branch of the Dabic test, that there is no reasonable prospect that the applicant can prove, on a balance of probabilities, that Andorra violated the Code when it terminated his employment.
58I now turn to the applicant’s allegation that on October 12, 2012, Andorra subjected him to a reprisal by terminating his employment after it found out that he had an anxiety disorder.
59In Noble v. York University, 2010 HRTO 878, the Tribunal held at para. 33 that in an application alleging reprisal, the following elements must be established, on a balance of probabilities:
a) An action taken against, or threat made to, the applicant;
b) The alleged action or threat is related to the applicant having claimed, or attempted to enforce a right under the Code; and
c) An intention on the part of the respondent to retaliate for the claim or attempt to enforce the right.
60In his submissions, the applicant did point to any evidence that Andorra terminated his employment because he claimed or attempted enforce a right under the Code, and that Andorra intended to retaliate against him for claiming or attempting to enforce a right under the Code. As such, I find, pursuant to the second branch of the Dabic test, that this allegation has no reasonable prospect of success.
61Next, I turn to the applicant’s allegation that from October 15, 2012 onwards, Andorra discriminated against him with respect to employment by failing to respond to his complaint of discrimination.
62The Tribunal’s jurisprudence recognizes that s. 5 of the Code imposes a duty on employers to investigate a complaint of discrimination in certain circumstances. However, the obligation to take reasonable steps to respond to and address such a complaint requires two things. First, the complaint must be communicated by the applicant, or be otherwise known to the employer, in a manner sufficient to engage this obligation. Second, the substance of the complaint must be about some potential violation of the Code. See Naidu v. Whitby Mental Health Centre, 2011 HRTO 1279 at para. 191.
63Furthermore, as set out in Scaduto v. Insurance Search Bureau, 2014 HRTO 250 at paras. 75-82, the employer’s duty to investigate a post-termination of employment discrimination complaint is circumscribed as follows:
The applicant asserts that ISB infringed his rights under the Code by failing to investigate his human rights complaint once he disclosed his sexual orientation, following the decision to terminate his employment. As the applicant points out, certain decisions of the Tribunal have found the Code to have been breached where respondent employers have failed to investigate or take action to address alleged discrimination in the workplace. These decisions have applied the analysis in the Tribunal’s decision in Laskowska v. Marineland of Canada Inc., 2005 HRTO 30.
The starting point for the analysis in Laskowska is that s. 5(1) of the Code imposes a general obligation on employers to provide a workplace that is free from discrimination. In Laskowska, the Tribunal concluded that this general obligation on employers to provide a discrimination-free workplace necessarily imposes certain corresponding obligations on employers, including “the duty on an employer to investigate a complaint of discrimination.” (at para. 51). Specifically, the Tribunal in Laskowksa found that the obligation to provide “a discrimination-free work environment” incorporated a duty to investigate as a “means” by which the employer ensures that it is achieving the Code-mandated “ends” of providing its employees with a discrimination-free work environment. (para. 53).
In order to understand how the duty to investigate fits within the Code, it is necessary to review the rights that are protected under it. The right under section 5 of the Code is the right to a workplace free from discrimination. To find a violation of the Code, there must be a finding of discrimination. In the absence of a finding of discrimination, there is no violation of the Code.
An employer’s failure to investigate a complaint of discrimination can contravene the Code when it causes or contributes to discrimination in the workplace. The breach of the Code is not the failure to investigate per se, but the failure to provide a workplace free from discrimination, which includes discrimination that is caused or exacerbated by a failure to investigate alleged Code infringements. In my view, there must be a finding of discrimination in order to sustain a violation of the Code. There is no contravention of the Code simply because there was a failure to investigate a complaint of discrimination where there is no finding of discrimination. Put differently, the Code is not contravened by the failure to investigate discrimination that does not exist. This finding is supported by the recent decision of the Divisional Court in Walton Enterprises v. Lombardi, 2013 ONSC 4218 at paras. 51 and 54.
This case demonstrates the difficulty of finding a breach of the Code solely for the failure to investigate. I have found there was no discrimination in the applicant’s workplace. Therefore, there is no contravention of the Code. It does not make sense to say to the respondent you have contravened the Code because you have failed to investigate the applicant’s complaint, but had you investigated, you would not have found discrimination.
Following the analysis set out above, the respondent’s failure to investigate the applicant’s complaint did not cause or contribute to discrimination in the workplace because it did not exist. It is inconsistent with the wording of section 5 of the Code to conclude the respondent contravened the applicant’s rights by failing to investigate his complaint when that failure did not deprive him of a workplace free from discrimination.
A further difficulty with finding the respondent has violated the Code for a failure to investigate stems from the fact that the applicant’s complaint was made after the respondent decided to terminate his employment. The purpose of the duty to investigate is to ensure a complainant is not required to work in a discriminatory environment. In this case, the applicant was no longer in the workplace. It could not then be said that the applicant’s right to be free from discrimination in his workplace was infringed by the failure to investigate because he was no longer there.
Employers are well-advised to investigate human rights complaints as the failure to do so can cause or exacerbate the harm of discrimination in the workplace. Internal investigations provide employers with the opportunity to remedy discrimination, if found, and can prevent Applications being filed with the Tribunal. They also limit employers’ exposure to greater individual and systemic remedies. The failure to do so is at their peril. But, if they fail to investigate discrimination that does not exist, that failure is not, in and of itself, a violation of the Code. For these reasons, this complaint is dismissed.
64In his submissions, the applicant stated that this allegation has a reasonable prospect of success because Andorra failed to respond to his October 15, 2012 “protest letter”. He stated that Andorra’s failure to respond to his complaint of discrimination is itself a human rights violation.
65In my view, this allegation has no reasonable prospect of success because the applicant’s October 15, 2012 complaint letter generally alleged that Andorra violated a number of employment-related laws, including the Code, but did not specifically explain how Andorra violated the Code. As such, the complaint was not communicated by the applicant in a manner sufficient to engage an obligation to take reasonable steps to respond to it.
66Alternatively, given that I have found that the applicant’s allegations of discrimination in the workplace have no reasonable prospect of success, and he was no longer in the workplace when he made his complaint, it cannot be said that Andorra’s failure to investigate his complaint caused or contributed to discrimination in the workplace, or infringed his right to be free from discrimination in his workplace.
67In the circumstances, I find, pursuant to the first branch of the Dabic test, that even if the applicant’s factual allegation is true, what he alleges cannot reasonably be considered to amount to a Code violation.
68Finally, I turn to the applicant’s allegation that on December 20, 2012, Andorra subjected him to a reprisal by making false complaints to the police about him.
69In his submissions, the applicant stated that this allegation has a reasonable prospect of success because there is a police occurrence report, which shows that Andorra made false complaints to the police about him. He also stated that he subsequently lost a job in April 2013 because he did not pass the security clearance.
70In my view, this allegation has no reasonable prospect of success because, based on my review of the police occurrence report, although it is true that Andorra complained to the police shortly after it received the applicant’s human rights Application, and the nature of the applicant’s comments in his Application and his December 2012 letter to Andorra were arguably misinterpreted or mischaracterized in the report, the fact remains that the applicant did make threats in both his Application and his letter to Andorra. Specifically, in his Application, he threatened that, if he did not receive justice, as a psychiatric patient, he could not guarantee what his next line of action will be, and in his letter, he threatened to bring criminal proceedings against Andorra if it refused to agree to a monetary settlement.
71In these circumstances, I find, pursuant to the second branch of the Dabic test, that there is no reasonable prospect that the applicant can prove, on a balance of probabilities, that Andorra’s complaint to the police was related to him claiming or attempting to enforce a right under the Code, and that Andorra intended to retaliate against him for claiming or attempting to enforce a right under the Code.
72Accordingly, the Application against Andorra is dismissed.
Allegations Against the TCSCC
73I now turn to the applicant’s allegation that in October 2012, the TCSCC discriminated against him with respect to employment because of his disability by blaming him for the malfunctioning elevator, and by barring him from its premises, which was a refusal to accommodate his disability-related needs.
74In his submissions, the applicant stated that this allegation has a reasonable prospect of success because it was part of his job to clean the elevator at the TCSCC, and he became a sacrificial lamb for suffering an injury while using the TCSCC’s defective elevator. He also stated that the TCSCC did not want to accommodate him after he became injured on its premises.
75In my view, this allegation has no reasonable prospect of success because the applicant did not point to any evidence that can show that the TCSCC was aware that he had a disability on October 2, 2012, when it had the elevator inspected and concluded that there was nothing wrong with it, and on October 15, 2012, when, after he sent his letter threatening legal action, it informed Andorra that it would not allow him to enter its premises. As such, the applicant did not point to any evidence that can show that there was a connection between the TCSCC allegedly blaming him for the malfunctioning elevator and his disability, and that the TCSCC barred him from its premises because it did not want to accommodate his disability-related needs. I therefore find, pursuant to the second branch of the Dabic test, that this allegation has no reasonable prospect of success.
76I turn now to the applicant’s allegation that in October 2012, the TCSCC subjected him to a reprisal by barring him from its premises.
77In his submissions, the applicant stated that this allegation has a reasonable prospect of success because the TCSCC barred him from its premises soon after he sent his October 15, 2012 letter, which mentioned that the matter had been reported to the Toronto Fire Chief for investigation.
78In my view, this allegation has no reasonable prospect of success because, although the TCSCC barred the applicant soon after it received his October 15, 2012 letter, the letter did not make any Code-related allegations against the TCSCC. Rather, it alleged that the TCSCC had operated an unsafe elevator, and concealed information about its safe operation from the relevant authorities (the Toronto Fire Chief), whom it was accountable to.
79In these circumstances, I find, pursuant to the second branch of the Dabic test, that there is no reasonable prospect that the applicant can prove, on a balance of probabilities, that the TCSCC’s action related to him claiming or attempting to enforce a right under the Code, and that the TCSCC intended to retaliate against him for claiming or attempting to enforce a right under the Code.
80Accordingly, the Application against the TCSCC is dismissed.
Allegations Against Dr. Chiu
81I now turn to the applicant’s allegation that on October 10-12, 2012, Dr. Chiu discriminated against him with respect to employment because of his disability by breaching doctor-patient confidentiality and providing “distorted information” to Andorra, which led to the wrongful termination of his employment.
82In his submissions, the applicant stated that this allegation has a reasonable prospect of success because Dr. Chiu disclosed confidential medical information to Andorra without his consent. Specifically, the applicant stated that the Report that Dr. Chiu filled out directed him to provide a copy of only page three to the applicant to provide to Andorra, but Dr. Chiu provided him with a copy of the entire Report. He also stated that Dr. Chiu appears to be suffering from senility, which would explain why he provided distorted information on the Report.
83In my view, this allegation has no reasonable prospect of success because the applicant, not Dr. Chiu, delivered the confidential parts of the Report, which included the diagnosis of an anxiety disorder, the anti-anxiety medication he was prescribed, and the “distorted information”, to Andorra. Furthermore, the applicant has essentially alleged that Dr. Chiu violated his privacy rights. While I recognize that disclosing that a person has a disability can be discriminatory in certain circumstances, the applicant has not explained, and I do not see, how Dr. Chiu’s alleged disclosure was discriminatory. I therefore find, pursuant to the first branch of the Dabic test, that even if the applicant’s factual allegation is true, what he alleges cannot reasonably be considered to amount to a Code violation.
84Alternatively, I find, pursuant to the second branch of the Dabic test, that this allegation has no reasonable prospect of success because, even assuming (without finding) that it is true that Dr. Chiu’s office should not have provided a copy of the entire Report to the applicant, and even assuming (without finding) that it is true that Dr. Chiu incorrectly filled out the Report and then reported to Andorra that he had not done so, the applicant did not point to any evidence that can show that Dr. Chiu’s alleged conduct was connected to his disability.
85I turn next to the applicant’s allegation that on December 6, 2012, Dr. Chiu subjected him to a reprisal by terminating the doctor-patient relationship because he filed a human rights Application.
86In his submissions, the applicant stated that this allegation has a reasonable prospect of success because of the proximity between Dr. Chiu’s receipt of his Application, and Dr. Chiu’s letter to him terminating the doctor-patient relationship. He also stated that the breakdown of doctor-patient trust was “perceived”.
87In my view, this allegation has no reasonable prospect of success because Dr. Chiu initially told the applicant that he should find a new doctor on October 29, 2012, after the applicant threatened to take legal action against him because Dr. Chiu maintained that he had not filled out certain sections of the Report that the applicant had submitted to Andorra. The applicant did not allege, or point to any evidence which can show, that he claimed his rights under the Code at that time.
88The applicant also failed to explain how, after accusing Dr. Chiu of committing professional misconduct and threatening to take legal action against him, and then filing Applications with the OLRB and this Tribunal against him, Dr. Chiu’s assessment that there was a breakdown in trust in the doctor-patient relationship was merely “perceived”. There is no air of reality to the applicant’s position that the breakdown in trust was merely perceived.
89In these circumstances, I find, pursuant to the second branch of the Dabic test, that there is no reasonable prospect that the applicant can prove, on a balance of probabilities, that Dr. Chiu’s December 6, 2012 notification to him that he was terminating the doctor-patient relationship was related to the applicant claiming or attempting to enforce a right under the Code, and that Dr. Chiu intended to retaliate against him for claiming or attempting to enforce a right under the Code.
90Accordingly, the Application against Dr. Chiu is dismissed.
Allegations Against Sunnybrook
91I now turn to the applicant’s allegation that on October 2-3, 2012, Sunnybrook discriminated against him with respect to services because of his disability during his second visit by failing to accommodate his mental health-related needs when it forcibly removed him from the hospital in the middle of the night and left him at a bus stop without determining whether he had money or other means to get home.
92In his submissions, the applicant stated that this allegation has a reasonable prospect of success because the treating physician did not give him an opportunity to discuss his mental health history, and when he refused to leave the hospital after being discharged, Sunnybrook viewed him as a trespasser and forcibly removed him without taking steps to accommodate his mental health-related needs. He also stated that when he has attended the emergency rooms of other hospitals in Toronto and been discharged in the late evening or early morning, those hospitals have accommodated his mental health-related needs by either giving him money for public transportation or letting him stay in the hospital until morning.
93In it submissions, Sunnybrook stated that this allegation has no reasonable prospect of success because when the emergency room physician treated the applicant he denied that he had any mental health problems and declined a referral to its crisis team for psychiatric services. Sunnybrook also stated that the applicant did not point to any evidence that can show that there was a connection between its actions and his disability.
94At this preliminary stage, I am not prepared to find that this allegation has no reasonable prospect of success. Sunnybrook appears to acknowledge that when the applicant refused to leave the hospital after being discharged, although the treating physician suspected that he may have been experiencing a mental health crisis, its security guards forcibly removed him and left him on the street in the middle of the night without checking if he had bus fare or other means to get home. I appreciate that there are disputes between the applicant and Sunnybrook about what exactly happened, and whether Sunnybrook’s duty to accommodate the applicant’s disability-related needs was triggered, but, in my view, the appropriate forum to decide these issues is at a merits hearing, not a summary hearing.
95Finally, I turn to the applicant’s allegation that In October/November 2012, Sunnybrook subjected him to a reprisal by providing hospital records to the WSIB, which indicated that he had been forcibly removed from the hospital and depicted him as a public nuisance.
96In his submissions, the applicant stated that this allegation has a reasonable prospect of success because Sunnybrook was only legally authorized to disclose information to the WSIB about his functional abilities in relation to his job duties. He stated that Sunnybrook illegally disclosed confidential information, which was unrelated to his job duties, and which undermined his WSIB claim.
97In my view, this allegation has no reasonable prospect of success because the applicant did not allege, or point to any evidence which can show, that Sunnybrook disclosed this information because he claimed or attempted enforce a right under the Code. I therefore find, pursuant to the first branch of the Dabic test, that even if the applicant’s factual allegation is true, what he alleges cannot reasonably be considered to amount to a Code violation.
98Alternatively, I find, pursuant to the second branch of the Dabic test, that there is no reasonable prospect that the applicant can prove, on a balance of probabilities, that Sunnybrook’s disclosure of information to the WSIB was related to him claiming or attempting to enforce a right under the Code, and that Sunnybrook intended to retaliate against him for claiming or attempting to enforce a right under the Code.
99Accordingly, the Application against Sunnybrook is dismissed in part. The outstanding allegation shall proceed to mediation, and, if necessary, a merits hearing.
Outstanding RFOPs
100In view of the above, the applicant’s RFOPs to add new allegations of discrimination with respect to the first Application have been dealt with, and the RFOPs to add further remedies with respect to the first Application are moot. Furthermore, the RFOP to remove Andorra’s legal counsel as the representative on record and add him as a respondent to the first Application lacks merit because absolute privilege extends to statements and written submissions made in administrative law proceedings that are the equivalent of pleadings. See Ornelas v. Casamici Restaurant, 2011 HRTO 1531; Visic v. Elia Associates Professional Corporation, 2011 HRTO 1230; Dixon v. Morrison, 2010 HRTO 2156; and Carlos v. 1174364 Ontario Ltd., 2009 HRTO 311.
NEXT STEPS
101The applicant and Sunnybrook have both agreed to mediation. Therefore, the Tribunal’s Registrar will schedule a mediation.
102During the summary hearing, the applicant requested that I and the other parties speak slowly and loudly because he has a hearing impairment. The applicant shall notify the Tribunal’s Registrar of any request for accommodation of hearing or other disability-related needs no later than four weeks prior to the mediation, and, if necessary, the merits hearing. A copy of the Tribunal’s Policy on Accessibility and Accommodation is attached to this Interim Decision.
ORDER
103The Tribunal makes the following orders and directions:
The first Application (No. 2012-12997-I) against Andorra, the TCSCC, and Dr. Chiu is dismissed.
The second Application (No. 2013-13769-I) is dismissed in part. The outstanding allegation shall proceed to mediation, and, if necessary, a merits hearing.
The applicant shall notify the Tribunal’s Registrar of any request for accommodation of hearing or other disability-related needs no later than four weeks prior to the mediation, and, if necessary, the merits hearing.
104I am not seized of this matter.
Dated at Toronto, this 10th day of March, 2014.
“signed by”
Ken Bhattacharjee
Vice-chair