Jackie Gonder v. Peterborough Regional Health Center, 2014 HRTO 700

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jackie Gonder Applicant

-and-

Peterborough Regional Health Center Respondent

INTERIM DECISION

Adjudicator: Jo-Anne Pickel

Date: May 16, 2014

Citation: 2014 HRTO 700

Indexed as: Gonder v. Peterborough Regional Health Center

WRITTEN SUBMISSIONS

Jackie Gonder, Applicant

Dan Gonder, Representative

Peterborough Regional Health Center and Brad Tucker, Respondents

Carolyn Dunlop, Counsel

Introduction

1The purpose of this Interim Decision is to address the respondents’ request that the Tribunal strike certain portions of the Application as they relate to events that were covered by a previous memorandum of agreement signed by the parties.

2By Application filed December 23, 2013, the applicant alleged that the respondents discriminated against her because of disability in the provision of services contrary to the Human Rights Code, c. H. 19, as amended. Specifically, she alleged that the respondents discriminated against her by failing to schedule an assessment at a location other than the respondent’s hospital facility. This allegation is set out in paras. 33-38 of the Application. The bulk of the Application, paragraphs 7-30, sets out allegations regarding events that occurred during the applicant’s prior employment with the respondent. These facts were the subject of a memorandum of settlement which contained a full and final release.

3The respondents request that the Tribunal strike paras. 7-30 of the Application. The respondents submit that these paragraphs are not relevant to the current Application which alleges discrimination in the provision of services.

4The applicant opposes the respondent’s request to strike on the basis that the alleged facts in paras. 7-30 provide context for her claims in the rest of her Application. According to the applicant, the paragraphs at issue provide background information on how the respondent’s actions during the employment relationship affected the applicant. The applicant also claims that the particulars in these paragraphs are integral to demonstrating the emotional difficulties she experienced as a result of the events covered by the memorandum of agreement.

5The respondents’ request to strike paras. 7-30 from the Application is granted. The subject matter of the present Application focuses specifically on whether the respondents failed to reasonably accommodate the applicant’s disability by scheduling an assessment at a location other than the respondents’ hospital facility. The Application specifically involves the applicant’s interaction with the personal respondent and his actions and/or inactions in or around September 5, 2013. In my view, the history of the applicant’s employment with the organizational respondent is not relevant to determining the issue of whether the respondents discriminated against the applicant by failing to schedule an assessment at a location other than the respondent’s hospital facility. In order to make out her case, the applicant will have to establish among other things that she has a disability, that the respondent was required to accommodate her disability and that it failed to provide reasonable accommodations. In my view, facts relating to the applicant’s employment relationship with the respondent are not relevant to these issues. I do not agree that these facts are necessary to demonstrate the nature of the emotional difficulties that form part of the applicant’s disability which she claims the respondents failed to accommodate.

6In my view, cases such as N.T. by his next friend D.B. v. Durham District School Board, 2013 HRTO 1715 are distinguishable. In that case, the Tribunal dismissed allegations that were subject to a full and final release but left it up to the adjudicator hearing the case on its merits to determine the relevance, if any, of any evidence relating to events occurring during the period of time covered by the release. In that case, all of the alleged events were similar in nature and formed part of an ongoing set of concerns raised by the applicant over an extended period of time. In this case, the applicant’s employment-related allegations that were subject to the memorandum of agreement and the release involved different types of allegations involving different individuals. In these circumstances, I find that the most fair, just and expeditious way of proceeding is to strike the allegations from the Application.

Orders/Directions

7For the reasons set out above, the respondents’ request to strike is granted. Paragraphs 7-30 of the Application are struck.

8I am not seized of this matter.