Hunter v. Christian Labour Association of Canada, 2015 HRTO 1064

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Tammy Hunter

Applicant

-and-

Christian Labour Association of Canada, Conservatory Pond, Chartwell Seniors Housing REIT, ACE INA Insurance, Brian Dijkema, Brendan Kooy, Jane Grant, Pat Tooze, Debbie Edmunds and Lynn Gleason

Respondents

DECISION

Adjudicator: Colin Johnston

Date: August 10, 2015

Citation: 2015 HRTO 1064

Indexed as: Hunter v. Christian Labour Association of Canada

APPEARANCES

Tammy Hunter, Applicant Self-represented

Christian Labour Association of Canada, Brendan Kooy and Brian Dijkema, Respondents Randall Boessenkool, Counsel Nathan vander May, Student-at-Law

Chartwell Seniors Housing REIT, Conservatory Pond, Jane Grant and Pat Tooze, Respondents Pam Laiper, Counsel

ACE INA Insurance, Lynn Gleason and Debbie Edwards, Respondents Anita Varjacic, Counsel

INTRODUCTION

1This Application alleges discrimination because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”). The Application names multiple respondents including the applicant’s former employer, her union, her employer’s insurance company, and a number of individual respondents who were employed with these different organizations.

2By way of a Case Assessment Direction (“CAD”) dated March 25, 2015, the Tribunal directed that a Summary Hearing be held to determine whether this Application should be dismissed, in whole or in part, on the basis that:

a. The allegations against the applicant’s former employer, Chartwell Seniors Housing REIT c.o.b. as Conservatory Pond (“Chartwell”) are untimely;

b. The allegations against the respondents Christian Labour Association of Canada (“CLAC”) and ACE INA Insurance (“Ace Insurance”) have no reasonable prospect of succeeding if the matter proceeded to a full hearing;

c. The individual respondents named in the Application should be removed as per the factors set out in Persaud v. Toronto District School Board, 2008 HRTO 31.

3A summary hearing was held on July 7, 2015. The summary hearing process is described in Rule 19A of the Tribunal’s Rules of Procedure (“Rules”) as well as the Tribunal’s Practice Direction on Summary Hearing Requests. The purpose of a summary hearing is to consider, early in the proceeding and usually before any Responses are filed, whether an application should be dismissed in whole or in part because there is no reasonable prospect that the application will succeed. As explained in the CAD, the hearing also dealt with the preliminary issues of delay and the removal of individual respondents.

BACKGROUND

4The applicant was employed as a part-time guest attendant at Conservatory Pond Retirement Residence located in City of Kingston. She was hired in September 2008. The Residence is operated by the respondent, Chartwell.

5On May 16, 2009, the applicant was injured at work while lifting a patient. She suffered injuries to her left shoulder and clavicle. The applicant has never returned to work at Chartwell. She states this is because the employer failed to offer her modified duties.

6The applicant applied for and received weekly indemnity (“WI”) benefits through her employer’s insurance carrier, ACE Insurance. The applicant did not apply for WSIB benefits. Counsel for Chartwell explained that the Residence is exempt from WSIA coverage and instead provides disability benefits through a private carrier.

7The applicant maintains that her initial entitlement to WI benefits was not approved until July 30, 2009 because her former manager, Pat Tooze, provided false information to the insurance carrier.

8In June 2009, the applicant was offered a full-time position with another retirement residence in Kingston. At the time, she provided written notice to Chartwell that she was resigning her part-time position at Conservatory Pond but asked to maintain her casual status. The applicant remained on Chartwell’s casual list until at least 2012 but did not work any hours.

9The applicant continued on WI benefits from 2009 to 2014. Her benefits were discontinued from time to time during this period, but with the assistance of her union the applicant appealed these denials and her benefits were reinstated.

10In July 2011, the applicant moved to Ottawa and began a retraining program offered through the insurance carrier. The program ran until May 2012. In 2013 she began work with another retirement residence in Ottawa.

11In April 2013, the applicant’s WI benefits were cut off due to a determination that she was no longer employed with Chartwell. The applicant appealed this decision with the assistance of her union. A grievance was also filed against Chartwell in July 2013 seeking to clarify her employment status. The grievance also alleged a failure to accommodate. The employer denied the grievance maintaining its position that the applicant was no longer employed with the organization.

12In December 2013, the applicant’s WI benefits were reinstated. No further steps were taken to pursue her grievance. The applicant had no interest at that time in returning to work for Chartwell in Kingston, as she was now living in Ottawa.

13The applicant exhausted her WI benefits in May 2014. She subsequently applied for permanent disability benefits but was denied entitlement on the basis that she did not meet the definition of total disability under the plan. That decision is currently under appeal.

14In June 2014, the applicant moved back to Kingston and made contact with Chartwell to inquire whether she could return to work on modified duties. The applicant states that she left several messages with the Residence’s current manager, Jane Grant, but her calls were never returned. The applicant alleges that Ms. Grant breached confidentiality when she spoke to other staff at the Residence about her situation.

15The applicant sought assistance from her union to appeal the denial of her permanent benefits. In October 2014, the union wrote to the applicant and advised her that it would not be assisting with her appeal.

16The applicant explained that she filed her Application in February 2015 out of frustration that her permanent disability benefits were denied by the insurance carrier, her union was refusing to assist her, and her former employer was not responding to her requests to return to modified work.

Delay

17Section 34 of the Code states, in part:

(1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series.

(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

18Under section 34, the Tribunal has no jurisdiction to deal with a complaint filed more than a year after the incident, or the last incident in a series, unless it is satisfied that the circumstances in subsection 34(2) exist.

19In this case, the applicant raises a number of allegations against the respondent, Chartwell. First, that Chartwell failed to accommodate her return to work following her accident in May 2009. This allegation is clearly beyond the time limit set out in the Code.

20Second, that Chartwell and the individual respondent, Pat Tooze, provided false information to the applicant and the insurance company in an effort to undermine her entitlement to benefits back in 2009. This allegation is also untimely under the Code.

21It appears that the applicant did not have any contact with her former employer between 2009 and 2014 while she was in receipt of WI benefits. There is clearly a gap of more than one year between the 2009 allegations and the alleged breach in 2014. There is no explanation for this delay other than the fact that the applicant had no reason to be in contact with her former employer while she was in receipt of WI benefits.

22The 2009 allegations against Chartwell are clearly out of time and are dismissed for that reason. The allegations against the individual respondent, Pat Tooze, are also dismissed for the same reasons.

23The third and final allegation against Chartwell involves events which took place in June 2014 when the applicant sought to return to work. There is no question that these events fall within the one year time limit for filing an Application. However, at this point in time, Chartwell clearly took the position that the applicant was no longer an employee of Chartwell.

24The applicant stated in her submissions that she thought the matter of her employment was resolved when the insurer reinstated her benefits in December 2013. The documentation from the insurance company supports the position that the insurance company considered her an employee of Chartwell for the purpose of continued entitlement to benefits.

25It was explained by counsel for the insurance company at the hearing that this communication was in error, in that the applicant would have been entitled to benefits regardless of whether she was an employee of Chartwell. The only relevant issue was whether the injury occurred while the applicant was an employee of the company.

26I accept that the miscommunication from the insurance company may have left the applicant with the impression in 2013 that she was still employed with Chartwell for the purposes of entitlement to benefits. However, her actual employment status with Chartwell was never resolved. The applicant was aware that a grievance was filed on her behalf challenging her employment status but that no further steps were taken on her grievance.

27It is apparent that but for the benefits issue the applicant had no interest in returning to Chartwell in 2013 as she was living in Ottawa and working at another facility. Her only interest in challenging her employment status was to get her benefits reinstated.

28Accepting all of the applicant’s evidence to be true, it is evident that the applicant was aware that Chartwell no longer considered her employee as of July 2013. The applicant took no steps to challenge that position or demand that the union advance her grievance to the next step in the grievance process. The grievance was not pursued any further because it achieved the desired result, to have the applicant’s WI benefits reinstated.

29Although the applicant continued to receive WI benefits, her employment with Chartwell had, according to the employer, lapsed. When the applicant contacted Chartwell in June 2014 she was no longer considered an employee with the respondent. There is no dispute that the applicant took no further steps to challenge that position until she filed her Application in February 2015. If the applicant wanted to challenge the status of her employment she should have done so in 2013. To challenge that decision some 18 months after the fact is simply untimely. It is my view that the Tribunal has no jurisdiction to consider the 2014 allegations since no employment relationship existed between the applicant and Chartwell at the time those events occurred.

30The Application against Chartwell is therefore dismissed in its entirety for the reasons described above. The Application as against the individual respondent, Jane Grant, is also dismissed for the same reason.

No Reasonable Prospect of Success

Christian Labour Association of Canada

31In Dabic v. Windsor Police Service, 2010 HRTO 1994, at paras. 8-10, the Tribunal made the following observations on the type of inquiry that may be involved in a summary hearing:

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.

In considering what evidence is reasonably available to the applicant, the Tribunal must be attentive to the fact that in some cases of alleged discrimination, information about the reasons for the actions taken by a respondent are within the sole knowledge of the respondent. Evidence about the reasons for actions taken by a respondent may sometimes come through the disclosure process and through cross-examination of the people involved. The Tribunal must consider whether there is a reasonable prospect that such evidence may lead to a finding of discrimination. However, when there is no reasonable prospect that any such evidence could allow the applicant to prove his or her case on a balance of probabilities, the application must be dismissed following the summary hearing.

32The Tribunal has established principles regarding a union’s liability under the Code when representing members in workplace disputes. In Traversy v. Mississauga Firefighters’ Association, 2009 HRTO 996, the Tribunal stated as follows at para. 33:

Assuming that the Code also applies to this aspect of a union’s relationship with the employees it represents, a claim that the union violates the Code must be based on an assertion of differential treatment, and not simply a failure to act. The failure or refusal to take forward a human rights issue, such as accommodation of a disability in the workplace, is not, in and of itself, a breach of the Code. There may be many reasons that have no discriminatory overtones why a union might choose not to pursue a human rights claim on behalf of an employee: see Baylet v. Universal Workers Union, 2009 HRTO 700. There must be a claim, and a factual foundation for the claim, that the failure to act was based on discriminatory factors.

See also Arias v. Centre for Spanish Speaking Peoples, 2009 HRTO 1025 at paras. 16-18.

33There are no allegations and there is no evidence pled in the Application to suggest that CLAC’s decision-making (not to assist the applicant with her appeal of permanent disability benefits) was based on any differential treatment under the Code.

34Similarly, there are no allegations to suggest that the union’s decision to take no further steps with the applicant’s grievance was influenced by factors prohibited under the Code. The fact that the union did not pursue her grievance is understandable given the circumstances. The applicant had no interest in returning to work at Chartwell in 2013 and was instead was focused on getting her WI benefits reinstated. Once the insurance carrier reinstated her benefits the grievance was moot.

35There are no allegations to suggest that the individual union representatives, Brian Bijkema and Brendan Kooy, acted in a manner that was contrary to the Code. The allegations against these individuals involve complaints about the quality of their representation.

36The Application is therefore, dismissed against CLAC and the individual respondents, Brian Bijkema and Brendan Kooy.

Ace Insurance

37The applicant’s primary complaint against the insurance carrier involves her denial of permanent benefits and her treatment at the hands of the insurance carrier.

38Her complaint against the individual respondents, Debbie Edwards and Lynn Gleason who work for Ace Insurance, involve their communication style and treatment of the applicant throughout the benefit claims process.

39There are no allegations pled in the Application to suggest that either Ace Insurance or the individual respondents acted in a manner contrary to the Code. In Seberras v. Workplace Safety and Insurance Board, 2012 HRTO 115 at paragraph 5, the Tribunal held as follows:

An Application related to a denial of benefits should be dismissed if there is not an allegation of discrimination under the Code. A Code application alleging merely that a decision-maker misapplied the rules of a program or misinterpreted medical documentation cannot be reasonably considered to amount to a Code violation and has no reasonable prospect of success.

40There are no allegations pled in the Application to suggest that any of the decisions made by the insurance carrier or any communications it had with the applicant, involved discrimination under the Code. The applicant is simply not happy with the way she was treated by the insurance company and not happy with the subsequent denial of her benefits. Allegations of general unfairness are matters that cannot be remedied by the Tribunal in the absence of an alleged violation of the Code; see Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389 at para. 17.

41For this reason, the Application as against the respondents Ace Insurance, Debbie Edwards and Lynn Gleason is dismissed, as having no reasonable prospect of success.

42The Application against all of the individual respondents has been dismissed. Accordingly, there is no need to deal with the issue of removing the individual respondents in this case.

ORDER

43The Application is dismissed in its entirely on the following basis:

a. The 2009 allegations against the respondents Chartwell and Pat Tooze are untimely and are dismissed on that basis;

b. The remaining allegations against Chartwell and the individual respondent Jane Grant which took place in 2014 are dismissed, as those allegations are untimely. Moreover, the Tribunal is without jurisdiction to consider those allegations as the applicant had no employment relationship with Chartwell when these events took place;

c. The Application is dismissed against the respondents, CLAC, Ace Insurance, and the individual respondents Brian Dijkema, Brendan Kooy, Debbie Edmunds and Lynn Gleason, as it has no reasonable prospect of success.