Carmen Wint-Inglis v. Ontario (Community Safety and Correctional Services), 2014 HRTO 733

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Carmen Wint-Inglis

Applicant

-and-

Her Majesty the Queen in Right of Ontario, as represented by the Minister of Community Safety and Correctional Services (the Maplehurst Correctional Complex), and John Hosegrove

Respondents

DECISION

Adjudicator: David Muir

Date: May 22, 2014

Citation: 2014 HRTO 733

Indexed as: Wint-Inglis v. Ontario (Community Safety and Correctional Services)

APPEARANCES

Carmen Wint-Inglis, Applicant

Self-represented

Her Majesty the Queen in Right of Ontario, as represented by the Minister of Community Safety and Correctional Services (the Maplehurst Correctional Complex), and John Hosegrove, Respondents

Amal Chaudry, Counsel

1This Application alleges discrimination with respect to employment because of disability, race and colour contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2In a Case Assessment Direction issued to the parties on November 23, 2013 the Tribunal directed that a summary hearing be held by telephone conference call to hear submissions about whether or not some or all of this Application should be dismissed because it has no reasonable prospect of success.

3A summary hearing was held by telephone conference call on May 15, 2014. All parties participated.

4The applicant who is a Correctional Officer (“CO”) and a person with one or more disabilities has been accommodated in the workplace since 2004 in relation to more than one medical issue requiring accommodation. In her Application the applicant alleges that she experienced discrimination because of disability, race and colour in the manner in which the employer interpreted her restrictions following a meeting on February 7, 2013.

5The respondent took the view that the applicant’s restrictions were such that she should not have contact with inmates for a period of time. During the material times in question the applicant’s foot was in a cast. The applicant’s restrictions appear to have changed to some degree in December 2012 and included a requirement that she avoid high risk or violent inmates. The respondent asserts, without contradiction by the applicant, that because of the nature of the facility all of its inmates are potentially high risk and or violent.

6The effect of the respondents’ interpretation of the applicant’s somewhat revised restrictions was such that she was removed from a position in which she had been working for some time, video remand, to another CO position outside of the secure area of the institution in visitor reception. The respondents assert, without contradiction by the applicant, that a CO in visitor reception has no contact with inmates.

7The change in work assignment had no direct employment consequences for the applicant. It is not clear how long this change in work duties lasted. The respondent states that some of the work limitations were lifted by the end of February, but the applicant asserts that she was not informed of this. In any event, after receiving further medical information the applicant was cleared to return to the secure parts of the facility and to her former position in video remand by early May 2013 at the latest.

8The applicant also alleges that at the February meeting she was not provided with union representation and that she was not properly consulted about her work assignment.

9At the summary hearing I asked to applicant to expand on her claim of differential treatment. The applicant indicated that she knew of two white female CO’s who would have been in need of accommodation who were not restricted in the way she had been. She also stated that there was a white male CO who was “90% blind” who was allowed to remain in video remand when she was not. The applicant also alleged that the respondent employer transported this individual to and from a bus stop because he could no longer drive a car. When I asked the applicant whether she knew what these individuals’ restrictions were the applicant indicated that she did not, but that she inferred from what was observable about these other COs that they would have been restricted in their physical access to inmates.

10The applicant alleged in her application that because of the work assignment to visitor reception she was denied access to a washroom with a “sharps” disposal facility. The applicant also stated that as a result of the restrictions imposed on her from February to late April 2013 she became unable to manage a medical condition without medication.

Decision

11The Application to the extent that it alleges discrimination on the basis of disability is dismissed because it has no reasonable prospect of success. The applicant complains that the respondents were not consultative enough about her restrictions and that she was denied union representation. Significantly the applicant does not assert that she was effectively denied any participation in the process and does not assert that the work assignment was not appropriate for her disability related needs. At the end of the day an employer is entitled to assign its employees to any position it chooses so long as it accommodates any identified disability related needs.

12The applicant does not allege that visitor reception was an inappropriate accommodation, except in one respect. Although this is not expressly stated in the Application the applicant alleged at the summary hearing that the washroom(s) to which she did have access to did not have “sharps” disposal, which I assume the applicant used to dispose of devices related to a medical condition. When I asked the applicant if she informed the corporate respondent of this deficiency the applicant responded that they were aware of the issue. While I appreciate that the absence of “sharps” disposal may have been an inconvenience for the applicant and its absence may raise a number of issues for the respondents and other staff, in all of the circumstances, I find that there is no reasonable prospect of success for this allegation as the applicant has not pointed to any evidence that would tend to establish that the lack of access to a facility with “sharps” disposal in any way prevented the applicant for engaging in her assigned duties or that she as differentially impacted in her employment. Accordingly, there is no reasonable prospect that the applicant can establish that the employer was required to accommodate a disability related need in these circumstances

13As regards the claim of discrimination on the basis of race and colour I have considered the submissions of the applicant I find that there is no reasonable prospect that this aspect of the Application can succeed. As indicated above, the applicant conceded that she knew nothing of the particular circumstances of the three individuals she relies upon and has inferred from what she observed that they must have had restrictions similar to hers. This is pure speculation on her part. Other than these three individuals the applicant pointed to no evidence of differential treatment of her in the accommodation process or in its substance in relation to her race and colour.

14For all of these reasons the Application is dismissed.