HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Brenda Daugherty
Applicant
-and-
Shoppers Home Healthcare Inc.
Respondent
Interim Decision
Adjudicator: Kathleen Martin
Indexed As: Daugherty v. Shoppers Home Healthcare Inc.
1This is an Application filed under s. 34 of the Human Rights Code R.S.O. 1990, c. H. 19, as amended (the “Code”). This Interim Decision addresses whether the Application should be dismissed on the basis that there is no reasonable prospect that the Application will succeed and issues directions regarding the continuation of the hearing.
2The Application alleges discrimination on the basis of disability. The allegations arise out of the applicant’s interactions with a sales representative and regional manager employed by the respondent in connection with the applicant’s efforts to purchase an assistive device to assist her in using her bathtub. Among other things, the applicant alleges that she was subjected to inappropriate conduct and remarks by the sales representative and regional manager (the latter when she complained to him about her treatment by the sales representative).
3The Application was filed on October 24, 2013, which is more than a year after the last incident of discrimination, which occurred October 18, 2012. At the time she filed the Application, the applicant relied on technical difficulties she experienced in filing the form at the Tribunal; namely her inability to file the form using the smart form or PDF versions available on the Tribunal’s website.
4A Response was filed denying the allegations of discrimination and providing a contrary version of the events. In addition, the respondent submitted that the Application should be dismissed for delay and on the basis that there was no reasonable prospect that it would succeed, including that the applicant had not identified her disability nor connected her disability to the alleged deficiency in service she received.
5By Case Assessment Direction the Tribunal directed that a preliminary hearing be held to address these issues. A hearing by conference call was held on May 23, 2014. At the hearing, I heard oral submissions, but no evidence was received.
Should the Application be dismissed for delay?
6At the preliminary hearing, the applicant provided more fulsome submissions about the delay in filing the Application. In addition to the technical difficulties cited, the applicant explained that she only took steps to file on October 17, 2013 (the day before the one-year period expired) for a number of reasons including that she had several serious medical problems which she particularized in the period leading up to that date. The applicant expressed surprise that she was required to “prove” her medical issues and states that had she had known, she would have filed material. The respondent submitted that there was no evidence before the Tribunal substantiating that these medical issues had an impact on her ability to file in a timely way and that the Tribunal should determine the issue on the basis of the material filed.
7At this preliminary stage, I find it appropriate to permit the applicant to file additional evidence in support of her position on delay and to provide the parties with a further opportunity to make submissions prior to any determination being made. While I appreciate the respondent’s concern, the applicant is unrepresented and the directions on delay in the Case Assessment Direction were framed generally. Directions regarding the filing of material and the scheduling of a hearing are set out below.
Is there no reasonable prospect that the Application will succeed
8Rule 19A of the Tribunal’s Rules of Procedure provides that the Tribunal may hold a summary hearing 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
9In Dabic v. Windsor Police Service, 2010 HRTO 1994, the Tribunal stated:
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 on 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…
10During the conference call the applicant stated that she has chronic pain and fibromyalgia and is in a wheelchair. The applicant described several negative interactions with one sales representative and the regional manager. Among other things, the applicant alleged that the sales representative told her that “you are the way god made you” on two occasions referencing her disability and size and that on a separate occasion harassed her by arguing with her and telling her that she should find another salesperson to deal with after the applicant told the sales representative several times that she was unwell (which the applicant states was because of her disability) and needed to end the conversation. Further, the applicant alleges that when she complained about the sale representative’s conduct, the regional manager did not apologize and among other things, referenced her disability by stating that if she wanted to purchase any products from them she would need to have an occupational therapist involved (involvement that the applicant states is irrelevant at this stage of the purchase and that would require her paying for an occupational therapist).
11The applicant submits the comments made were inappropriate and linked to her disability. With respect to the regional manager’s comment, the applicant submits the manager was denying her services because of her disability.
12The respondent made various submissions including that it disputes the applicant’s version of events and that the applicant is merely speculating as to the link to disability. With respect to the comment “you are the way god made you” the respondent submits that it should be permitted to make submissions as to whether this is properly considered part of a series of incidents within the meaning of section 34 of the Code given that the applicant raised this allegation for the first time at the preliminary hearing.
13In determining whether the Application should be dismissed at this stage, the respondent quite property highlights that the Code does not provide a remedy for general allegations of unfairness and that to continue in the process there must be a basis beyond mere speculation and accusations to find that an applicant can show discrimination. However, having reviewed the allegations and the applicant’s submissions, I am not prepared to find that there is no reasonable prospect that the applicant can establish discrimination. The applicant describes negative interactions and references being made to her disability. While the respondent clearly has an entirely different version of the events of what transpired and how the alleged comments and interactions should be interpreted, I do not find it appropriate to weigh the respective merits of the parties’ cases at this stage in the absence of hearing at least some evidence.
Order
14In the result, the Application will continue in the Tribunal’s process. The Application will be set down for one day of hearing on the issue of delay and the merits of the Application. Directions are given below for the hearing including in respect of the applicant’s request to file medical documentation in support of her claim that she had health issues which impacted on her ability to file the Application within one year after the last incident of discrimination.
Directions
15The Tribunal orders and directs:
The Application will continue in the Tribunal’s process;
The Application will be scheduled for a one-day in-person hearing, such hearing to be confirmed by letter from the Registrar;
In addition to any directions provided in the Notice of Hearing letter, by July 11, 2014, the applicant shall file any medical documentation in support of her submissions on delay (i.e. that she had health issues which impacted on her ability to file the Application within one year after the last incident of discrimination) along with any other submissions she may wish to make in connection with that evidence, with a copy to the respondent;
By July 25, 2014, the respondent may file any submissions in response;
By August 8, 2014, the applicant may file any reply.
16The Tribunal will review the material received and may issue other directions in advance of the hearing.
17I am not seized.
Dated at Toronto, this 11th day of June, 2014.
“Signed by”
Kathleen Martin
Vice-chair