Illes v. Manufacturers Life Insurance Company, 2014 HRTO 992

HUMAN RIGHTS TRIBUNAL OF ONTARIO

BETWEEN:

Richard Illes Applicant

-and-

The Manufacturers Life Insurance Company Respondent

DECISION

Adjudicator: Dawn J. Kershaw Date: July 7, 2014 Citation: 2014 HRTO 992 Indexed as: Illes v. Manufacturers Life Insurance Company

APPEARANCES

Richard Illes, Applicant Self-represented

The Manufacturers Life Insurance Company, Respondent Sophia Zaidi, Counsel

Introduction

1This Application alleges discrimination with respect to employment because of disability, marital status and association with a person identified by a Code ground contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code").

2By Case Assessment Direction, dated February 12, 2014, a summary hearing by teleconference was scheduled for June 27, 2014 to determine whether the Application has no reasonable prospect of success.

3On June 17, 2014, the applicant filed a Request for an Order During Proceedings requesting that he be allowed to amend his Application to include the area of services, goods, and facilities and to add the ground of reprisal.

4The respondent agreed to have the Request for an Order During Proceedings heard at the same time as the summary hearing and filed its response to it on June 24, 2014.

Background

5The applicant commenced this Application on September 30, 2013 against the respondent which is responsible for long term disability benefits ("LTD benefits") payable to employees of the applicant's employer, including the applicant. The applicant commenced a separate Canadian Human Rights Act complaint against his employer.

6The applicant applied for LTD benefits on November 27, 2007, and these were approved on December 11, 2007. As of July 16, 2009, the applicant was considered to be totally disabled from being able to perform any reasonable alternative occupation and his LTD benefits were approved past July 31, 2009.

7In administering LTD benefits, the respondent also provides some return to work assistance in appropriate cases. In 2008 and again in 2011, the applicant requested that the respondent ask the employer to provide him with work at home. Discussions among the respondent, applicant and employer ensued, and ergonomic and functional assessments were undertaken, but although the respondent says it advised the employer that there were no contraindications to the applicant returning to work on a part-time basis and although he offered to sign a liability waiver, he has never been returned to work and continues to receive LTD benefits.

Submissions of the Parties

8The applicant alleges that the respondent has conspired with the employer to prevent him from returning to accommodated work.

9The applicant submits that the respondent has a joint responsibility with the employer to provide accommodated work for him as an agent of the employer.

10The applicant further alleges that the way in which the respondent deals with him changed as of June, 2012 when the applicant's wife, who is also disabled and on LTD benefits through the respondent, was forced to resign her position with the same employer as a result of initiating a formal complaint against the respondent. He alleges he has been discriminated against by the employer because of his marital status and because of his association with his wife as a person who is identified by the Code ground of disability.

11He further alleges that the respondent has reprised against him because of the assistance he has given his wife with her LTD claim and her complaint against the respondent, and because he brought this Application. He alleges that the respondent now refuses to communicate directly with him and has directed him to communicate with the respondent's counsel. He alleges that he had a conversation with his case manager and was told that, because he brought an application to the Tribunal, he no longer has a venue for his questions and concerns.

12He also alleges generally that the respondent's actions are due to his disability.

13The respondent for its part submits that it is not the applicant's employer. In addition, its contract is with the employer and it is not providing a service to the applicant. The respondent takes the position that it fulfilled its service contract with the employer. It provided rehabilitation services and LTD benefits to the applicant. Therefore, the applicant's claims in the areas of employment and services must fail.

14The respondent further submits that it has not violated the Code in any way. It can provide advice to the employer, but cannot itself provide accommodation to the point of undue hardship. In addition, it has not treated the applicant differentially because of his disability.

15With respect to the applicant's claim that he has been reprised against because he assisted his wife with her LTD claim and complaint against the respondent, the respondent submits that the case managers do not have access to others' files and would not have access to the applicant's wife's file.

16In addition, the respondent directed the applicant to communicate with counsel and not the respondent directly because he has brought an Application against the respondent, and not because the respondent is reprising against him.

17The respondent submits that with respect to the applicant's submission that it is an agent of the employer, under s.46.3 of the Code the employer is responsible for the actions of its agents.

Decision

18Rule 19A.1 of the Tribunal's Rules of Procedure provides:

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.

19In Dabic v. Windsor Police Service, 2010 HRTO 1994, the Tribunal made the following comments at paragraphs 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.

20The Tribunal has stated on many occasions that it does not have a general power to deal with allegations of unfairness. See, for example, Szabo v. Office of a Member of Parliament of Canada, 2011 HRTO 2201 and Badvi v. Voyageur Transportation, 2011 HRTO 1319. Discrimination generally involves an allegation of unfair treatment on the basis of one or more of the grounds under the Code, such as disability. Unfair treatment is not discriminatory in the legal sense unless there is proof that one or more of these personal characteristics was a factor in the treatment the applicant experienced. At the summary hearing stage, the Tribunal does not determine whether the applicant is telling the truth or assess the impact of the treatment experienced. There is no question that acts of unfairness that are not legally discriminatory can cause significant harm.

21At a summary hearing, the test the Tribunal applies is that of no reasonable prospect of success, which is determined by assuming the applicant's version of events is true unless there is some clear evidence to the contrary. Accepting the facts alleged by the applicant does not include accepting the applicant's assumptions about why he was treated unfairly. The mere fact that a person identified by a prohibited ground of discrimination experiences some kind of disagreeable or unfair treatment is not generally sufficient to support an inference of discrimination. The question that the Tribunal must decide at a summary hearing is whether there is likely to be sufficient direct or indirect evidence available to connect the unfair treatment experienced by the applicant with the applicant's personal characteristics. However, if the applicant is unable to point to circumstances beyond his or her own assumptions or belief, the application may be found to have no reasonable prospect of success.

22The applicant's original Application alleges that the respondent discriminated against him in the area of employment. He now seeks to amend his Application to add the area of services.

23I agree with the respondent's submission that, because it is not the applicant's employer, the applicant's claim that it has discriminated against him in employment has no reasonable prospect of success.

24With respect to the area of services, even if I were to find that the respondent was providing services to the applicant, I find no reasonable prospect of success with respect to the applicant's allegations. This case parallels that of Ivanescu v. Credit Valley Hospital, 2012 HRTO 1352 in which the LTD administrator, Manulife, was removed as a party in the proceeding because the Tribunal held that it was the employer, not Manulife, who controlled the applicant's terms and conditions of employment. The ability of, and duty to, accommodate an applicant's disability-related needs up to the point of undue hardship lies with the employer. I agree with the respondent that as the LTD administrator, it did not have the ability to do more than make recommendations and provide information to the applicant's employer. As such, I find no basis upon which I might conclude that this respondent discriminated against the applicant by failing to accommodate his disability-related needs in the workplace.

25As for the applicant's allegation that the respondent conspired with the employer to prevent him from returning to accommodated work, the applicant provided no evidence other than his belief. There is no factual basis to support such a conspiracy.

26In addition, the applicant provided no evidence that the actions or alleged inactions of the respondent were because of his disability, marital status or association with a person who identifies with a Code ground. Accordingly, there is no basis upon which I might conclude that the respondent's actions or alleged inactions were discriminatory within the meaning of the Code. See, for example, Westgarth v. Great West Life Assurance, 2011 HRTO 1189, at para. 14-15.

27The applicant's frustration is apparent and is understandable because the applicant wishes to return to work and this has not been accomplished. However, the applicant's beliefs as to why this is the case, however sincerely and strongly held, are insufficient to establish differential treatment resulting in disadvantage in his dealings with the respondent based on any of the grounds he has identified.

28Finally, with respect to the applicant's claim of reprisal, even if I allowed the applicant's amendment to the Application to include this ground, the applicant provided no evidence that the respondent's decision to direct him to communicate with counsel for the respondent was for any reason other than that he had commenced this Application, which means the parties are in litigation and the respondent has a representative with whom the applicant should communicate.

29With respect to his claim that the respondent's dealings with him changed in 2012, the applicant's claim is mere speculation, and he provided no evidence to establish any intention on the respondent to reprise against him either for his commencing this Application or for his involvement in helping his wife with her LTD claim and complaint against the respondent.

Order

30The Application is dismissed.