HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Betta Dalfuoco
Applicant
-and-
Birks and Mayors Inc. and the Standard Life Assurance Company of Canada
Respondents
Decision
Adjudicator: David Muir
Indexed as: Dalfuoco v. Birks and Mayors Inc.
WRITTEN SUBMISSIONS
Betta Dalfuoco, Applicant ) Self-represented
Birks and Mayors Inc., Respondent ) Sonia Regenborgen, Counsel
)
Standard Live Assurance Company ) Danielle Young, Counsel
of Canada, Respondent )
1This is an Application filed pursuant to section 34(1) of the Human Rights Code R.S.O. 1990, c. H.19, as amended (the “Code”) alleging discrimination in employment on the basis of disability. This Decision deals with a request for summary hearing.
2The applicant is an employee of Birks and Mayors Inc. (‘Birks”). She applied for and received short term disability benefits provided by Birks and administered by Standard life. In her Application the applicant alleges that she experienced discrimination in being asked questions about her alleged disability by the respondent Standard Life Assurance Life of Canada (“Standard Life”).
Background
3This Application was filed on January 13, 2013. On March 28, 2013 Birks filed a Request for Summary hearing. On April 12, 2013 the respondent Standard Life made a similar Request. In a Case Assessment Direction (“CAD”) dated April 30, 2013, this Application was placed in abeyance for 90 days because the applicant indicated that she was not able to communicate because of her disability. The CAD directed the applicant to provide a status update at the end of the 90 days.
4On August 1, 2013, Birks renewed its Request for Summary Hearing. The applicant sought an extension of time because she was “still not able to communicate effectively verbally” and that she has sent more information to Standard Life about her condition. Both respondents seek the early dismissal of this Application because it has no reasonable prospect of success.
5In her Application, the applicant alleges that she experienced discrimination in employment because she was asked questions about her disability and was required to provide information to Standard Life. The applicant does not describe what kind of information was requested of her but asserts that other employees seeking benefits did not have to provide this kind of information. No details of this allegation are provided. According to the respondents the applicant has received her full entitlement to short term disability benefits offered by the respondent and is now in receipt of long term disability benefits. Neither of these assertions are denied by the applicant and appears to be confirmed by the applicant in several emails the applicant has provided in the course of this proceeding.
6In a CAD issued on August 29, 2013 the Tribunal directed that a Summary Hearing be held, but allowed the applicant further time to respond to the proposed process and indicate when she could participate in the process. In response the applicant indicated that she wished to proceed by way of written submissions and in a final CAD issued on October 31, 2013 the Tribunal directed that the Summary Hearing be in writing. The respondent has filed written submissions. The applicant although communicating with the Tribunal on a number of occasions did not provide meaningful submissions on the Summary Hearing issues.
Decision
7For this reasons that follow I find that this Application must be dismissed because it has no reasonable prospect of success..
8Rules 19A.1 and 19A.2 of the Tribunal’s Rules of Procedure read as follows:
19A.1 The Tribunal may hold a summary hearing, on its own initiative or at the request of a party, on the question of whether an Application should be dismissed in whole or in part on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.
19A.2 Rules 16 and 17 do not apply to summary hearings. The Tribunal may give directions about steps the parties must take prior to the summary hearing, including disclosure or witness statements.
9Details about the nature of a summary hearing were set out as follows in Dabic v. Windsor Police Service, 2010 HRTO 1994, at paras. 8 and 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.
10In the CAD issued to the parties on October 8, 2013 the parties were advised further about the issues to be addressed in the Summary Hearing Process:
The test that is applied at a summary hearing is whether an application should be dismissed in whole or in part because it has no reasonable prospect of success. At the summary hearing stage, the Tribunal is not determining whether the applicant is telling the truth or assessing the impact of the treatment they experienced. At a summary hearing, the Tribunal considers the applicant’s submissions regarding what evidence is available to applicant to establish a link between the alleged mistreatment and the Code grounds. The purpose of the summary hearing is to determine if reasonable inferences can be drawn from the any facts or evidence the applicant is able to point to which tend to support the applicant’s belief that she experienced discrimination.
11As indicated above the allegation in the Application is that the applicant was asked questions by Standard Life. I note that the Application was filed very shortly after the applicant had applied for the benefit she was seeking. I also observe that the applicant’s clearly articulated anxiety may have been in play at the early stage of the Application process. However the fact is that the applicant received the benefits she was apparently entitled to. There were some delays in her receiving benefits but such delays as there were, according to the respondents, a consequence of the applicant’s failures to provide information or to attend an assessment. I note again that the applicant does not dispute any of the assertions of the respondents and in the circumstances I am entitled to accept them.
12The only other fact alleged by the applicant is that other employees are seeking short term disability benefits “were never asked for any additional information”. Although given ample time to clarify her Application and provide a factual basis to make a link with the Code, the applicant has provided no further details about what this assertion means or how it would tend to establish a violation of the Code. On the face of the Application there is no reasonable prospect that this Application can succeed given the limited facts which are plead. Even assuming that it is true that other employees were not asked for the same information as the applicant was required to provide that fact on its own would not tend to support a violation of the Code in the circumstances. As Birks pointed out in its submissions in some cases insurers are entitled to ask for different things of applicant’s for benefits depending on the nature of the claim. See section 22 of the Code.
13For these reasons I am satisfied that this Application has no reasonable prospect of success and must be dismissed.
Order
14The Application is dismissed.
Dated at Toronto, this 20th day of March, 2014.
“Signed by”
David Muir
Vice-chair