Hepting v. Mary R. Di Salvo Financial Services Corporation, 2014 HRTO 901

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Penny Hepting

Applicant

-and-

Mary R. Di Salvo Financial Services Corporation and Mary R. Di Salvo

Respondents

DECISION

Adjudicator: Dawn J. Kershaw

Date: June 18, 2014

Citation: 2014 HRTO 901

Indexed as: Hepting v. Mary R. Di Salvo Financial Services Corporation

APPEARANCES

Penny Hepting, Applicant

Joseph A. VanAsseldonk, Counsel

Mary R. Di Salvo Financial Services Corporation and Mary R. Di Salvo, Respondents

Elizabeth Traynor, Counsel

Introduction

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

2After the applicant and two of the four intended respondents’ witnesses, namely Victoria Rowe and Janet Anderson, testified on March 14, 2014, I granted the respondent’s request to argue that the Application should be dismissed as having no reasonable prospect of success. I received written submissions from both parties, with the last of these being received on April 15, 2014.

issue

3The issue for the Request for an Order During Proceedings asking that the Application be dismissed as having no reasonable prospect of success is whether there is a reasonable prospect that the applicant can establish a connection between the respondents’ actions and the Code.

4Having reviewed the evidence thus far, as well as the parties’ submissions with respect to no reasonable prospect of success, I conclude that there is no reasonable prospect that the applicant can prove discrimination within the meaning of the Code. The Application is dismissed.

background

5The applicant worked for the respondents from August 13, 2008 until April 26, 2012 as a marketing assistant, performing primarily administrative duties. The applicant alleges that she had a disability and that the respondents discriminated against her and failed to accommodate her with respect to that disability.

6The applicant also alleges that the respondent, Mary R. Di Salvo (“the personal respondent”) harassed her contrary to the Code by humiliating and belittling her in front of her peers, and by creating a poisoned work environment through her abusive, bullying, harassing and humiliating treatment of the applicant, which in turn caused her to develop serious health issues.

7The applicant and personal respondent had a fractious working relationship. The personal respondent was keeping notes with respect to the applicant’s performance issues, which the applicant was reading on the computer regularly.

8The applicant’s employment came to an end on April 27, 2012, a day after she left her place of employment without advising her supervisor that she was leaving. She alleges that she left because of a panic attack. The respondents allege she resigned and they accepted her resignation by letter. The applicant denies resigning and states that she tried to explain to her supervisor on April 27, 2012 that she had left the day before for medical reasons.

LEGAL PRINCIPLES

9The relevant provisions of the Code are as follows:

5(1) Every person has a right to equal treatment with respect to employment without discrimination because of […] disability.

5(2) Every person who is an employee has a right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of […] disability

17(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.

17(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.

10The Tribunal is not limited to dismissing an application because it has no reasonable prospect of success only at an initial stage of the Tribunal’s process. The Tribunal has concluded that it can decide this issue after some but not all of the proposed evidence has been called. See, for example, Pellerin v. Conseil Scolaire de district catholique Centre-Sud, 2011 HRTO 1777. As stated in Pellerin at para. 32:

An applicant who cannot prove the foundations of the claim that depends on his or her evidence as in Jagait cannot proceed with the case and this may be analysed as a lack of prima facie case and/or no reasonable prospect of success.

11The 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 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.

12An applicant must establish a connection between the disadvantage and the ground on a balance of probabilities. However, often only the person who made a decision or took relevant actions will know why they were taken, and relevant evidence will frequently be in the possession of a respondent. Human rights law recognizes that a respondent’s non-discriminatory explanation may in fact be erroneous or a pretext for discrimination.

13It is well-established in human rights law that in order for a termination of employment to constitute a violation of the Code, discrimination need only be one of the reasons for the termination. See: Quattroci v. Boz Electric Supply, 2009 HRTO 1082 and Wilson v. Solis Mexican Foods Inc., 2013 ONSC 5799.

issues

14The applicant denied resigning and submitted that in order for me to find discrimination I need only to find that her disability was one factor in the decision to terminate her, and that it need not have been the primary or only reason.

15The respondents submit that:

a. The applicant failed to establish that she had a disability; and

b. There was no link between the applicant’s disability and the respondents’ decision to accept the applicant’s resignation.

16In some ways, whether the applicant resigned or was terminated is not the primary issue in this case. This is because if the applicant cannot establish on a balance of probabilities that she was under a disability on April 26th, or that the respondents perhaps perceived her to be under a disability, then there is no basis for her claim that disability was either a direct or constructive factor in either her termination or resignation.

APPLICATION TO THE FACTS

Disability

17At the material times the applicant was working directly for the personal respondent and was supervised by Wendy Roulston (“Ms. Roulston”). The applicant alleges in her Application that her relationship with the personal respondent led her over the course of the four years to develop “serious health issues”.

18The applicant produced three notes from her family doctor. The first, dated April 30, 2012, four days after the events in question, stated that the applicant was unable to work from April 26 to May 2 due to illness. The second, dated May 14, 2012, stated that the applicant was unable to work because of ongoing medical issues and that she was to be reassessed every two weeks. The last, dated June 5, 2012 stated that the applicant was under the doctor’s care concerning her present medical issue and was reassessed at regular intervals every 2 to 4 weeks.

19The first note from the applicant’s family doctor was sent to the respondents on May 2, 2012 by a lawyer the applicant retained to assist her after she received the April 27, 2012 letter from the respondents enclosing her Record of Employment.

20The applicant testified that on April 26, 2012 she had a panic attack at work after a meeting with Ms. Roulston and Ms. Rowe who also worked for the personal respondent. In the meeting, Ms. Roulston took issue with some files that had been prepared for the personal respondent’s business trip, including one for which the applicant had forgotten to include a mortgage kit. They also discussed files from head office that included erroneous information.

21After that meeting, the applicant checked the notes being kept about her on the computer and found that this error had been documented. She testified that she was not angry about it, but was upset.

22She testified that she felt her heart beating fast and her hands were sweaty. She went and got a file ready for a meeting. The applicant testified that she told Ms. Rowe of her symptoms, which Ms. Rowe denied. The applicant sent Ms. Rowe an email that night asking if she had told Ms. Roulston that she was sick. Ms. Rowe testified that the applicant had not told her, and so she didn’t understand the email. She felt the applicant was asking her to cover for her, possibly because she was the only one who knew that the applicant was checking her personal file on the computer In my view, nothing turns on whether or not the applicant told Ms. Rowe she was ill for reasons set out below.

23Ms. Rowe and Ms. Anderson testified that the applicant went to the kitchen and they could her cleaning her food out of the fridge, although the applicant said she was in the kitchen because she thought she would feel better if she ate something. Ms. Rowe and Ms. Anderson testified that the applicant then came past them with her things in her hand and her coat on and said good bye to them. They then heard the front door chime as she went out. They then heard the chime again and heard her drop her keys on the front desk and leave again. I accept their evidence, which was consistent. The applicant did not recall coming back to leave her keys, but did not deny that her keys were left behind at the front counter.

24The applicant testified that she took the bus home. She did not go to the hospital or to a walk in clinic. She saw her family doctor four days later.

25Whether or not the applicant had told Ms. Rowe she was ill is not determinative because not only did Ms. Rowe testify that she did not tell the applicant’s supervisor, Ms. Roulston, but also because in any event, Ms. Roulston received that information from the applicant the next morning. The applicant testified that she tried to explain to Ms. Roulston the next morning, on April 27, 2012, that she had left work the day before for medical reasons, which is evidenced by the respondents’ April 27, 2012 letter in which they confirm that the applicant advised she had a medical issue on April 26, 2012, but which also indicated that they did not believe her. I did not hear Ms. Roulston’s evidence.

26The applicant did not call her family doctor as a witness. Other than the three doctor’s notes referred to above, she produced no medical notes.

27The applicant had no known history of mental illness or absences for illnesses, and she agreed that this would have been the first time Ms. Roulston would have known of any health issue. The applicant’s attendance record showed she had taken 3.5 sick days in 2008-2009, 3 in 2009-2010, 2 in 2010-2011 and 1 in 2011-2012.

28On the particular facts of this case, I find it a reasonable assumption by the respondents that the applicant had resigned, given the events of April 26th, which included returning to leave her keys behind. I also find it reasonable that the respondents were skeptical of the applicant’s claim of a sudden disability in the context of the ongoing fractured working relationship, coupled with the complete lack of prior medical history. I find that the respondents accepted the applicant’s resignation in light of the applicant’s performance issues. In my view, there was no basis for the respondents to believe that the applicant was having a mental health crisis on April 26th itself, and little if any basis to believe so after the fact. The subsequent medical evidence was equally insufficient to prove, or really even suggest, that the applicant had a disability.

29First, if the applicant was terminated, as she suggests, then there is nothing in the evidence to suggest that disability was a factor in that decision. I accept that the respondents genuinely did not believe the applicant had suffered a panic attack when she subsequently advised them of this and the sole reason they no longer wished the applicant to work for them was because of the ongoing performance issues – which they had been documenting for some time. Whether or not the events of the 26th amounted to a resignation, they treated it as such in order to bring the employment relationship to an end – solely, in my view, because of performance concerns. On the other hand, if the events genuinely did amount to a resignation and if the applicant had established that she had a genuine mental health disability which affected her decision-making when she resigned, then the employer may well have had an obligation to consider that medical evidence and perhaps rescind their decision to accept a resignation. The basis for such an obligation would have been to avoid constructive discrimination with respect to the applicant. Whereas normally an employer would be justified in accepting an employee’s resignation (even if the employee later regretted that decision) that neutral rule might contravene section 11 of the Code if an employee purported to resign as a result of or during a mental health crisis. However, in this case, where there was little objective basis to conclude the applicant might have had a mental break and the applicant provided only the vaguest of medical documentation after the fact in support of her claim, I am satisfied that the respondents did not breach the Code when it refused to rescind its decision to accept what it maintains was her resignation.

30First, the medical note she provided to her employer fell far short of establishing that the applicant was under a disability when she left the office – in fact rather than supporting the applicant’s theory that she had suffered a panic attack, the first note she provided simply stated she would be off work for a period of time because of some unspecified illness. In my view, even if the employer was under a procedural obligation to consider the applicant’s claim of disability this note would have satisfied that obligation by confirming there was no medical support for her claim of a panic attack.

31I am further strengthened in my conclusion because I find that even at the hearing of this Application, the applicant failed to establish on a balance of probabilities that she had a panic attack on April 26th. All three medical notes she submitted are extremely vague, speaking only generally to ongoing “illness” or “health” issues in the period after she was no longer at work. There simply is no medical evidence to support her position that she suffered a disabling mental health crisis on April 26th.

32As a result of my finding that the applicant did not prove she had a disability, there is no need for me to consider whether or not the respondents had a duty to accommodate.

Harassment

33The applicant also alleged that the personal respondent harassed her by humiliating and belittling her in front of her peers, and by creating a poisoned work environment through her abusive, bullying, harassing and humiliating treatment of the applicant, which in turn caused her to develop serious health issues.

34Even if the evidence did support those assertions, and I find there was no evidence to support them other than that the personal respondent demanded that the work be done right, there is nothing from which I can draw a connection between this treatment and a Code ground (in this case, disability) as there was not sufficient evidence to establish that the applicant had a disability.

order

35I find that this Application has no reasonable prospect of success and it is dismissed.