Deborah Lee Rippon (Chan) v. Halton District School Board and Howard Hamer, 2015 HRTO 1295

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Deborah Lee Rippon (Chan)

Applicant

-and-

Halton District School Board and Howard Hamer

Respondents

DECISION

Adjudicator: Dawn J. Kershaw
Date: September 30, 2015
Citation: 2015 HRTO 1295
Indexed as: Rippon v. Halton District School Board

APPEARANCES

Deborah Lee Rippon (Chan), Applicant Self-represented

Halton District School Board, Respondent Amanda Lawrence, Counsel

Howard Hamer, Respondent Stephen Ronan, Counsel

Introduction

1This Application alleges reprisal and 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”).

2Pursuant to a Case Assessment Direction (“CAD”) dated May 13, 2015, the Tribunal directed that a summary hearing be convened pursuant to Rule 19A of the Tribunal’s Rules of Procedure to determine whether the Application should be dismissed, in whole or in part, on the basis that there was no reasonable prospect that the Application will succeed.

3All parties made submissions at the September 11, 2015 summary hearing, by teleconference.

factual background

4The applicant self-identifies as a person with a disability. She alleges that the respondent, Dr. Hamer, conducted a substandard Independent Medical Examination (“IME”) because he initially did not consider medical information available to him on CD’s. She also alleges the IME wrongly did not support that she had a serious health issue, and that even though Dr. Hamer issued addenda after the initial IME report, these still, in her view, did not clarify the issue.

5The applicant further alleges the IME affected the way the respondent school board treated her and the respondent school board discriminated against her because of its insistence, after receiving the IME, that she participate in ergonomic training that she alleges would have compromised her health condition.

6The respondent school board asserts that, in its view, the applicant’s claims are that she has a disability and cannot do modified duties; that she has exhausted her Workplace Safety and Insurance Board (“WSIB”) and sick leave; and that the respondent school board is following incorrect information from Dr. Hamer by insisting she do an ergonomic assessment. The respondent school board submits, and the applicant does not dispute, that the respondent school board abandoned the request that the applicant do the ergonomic training when it got medical information that opined she should not do it. When asked by the Tribunal if the respondent school board disciplined her in any way for not attending the ergonomic assessment, she stated she did not believe it did.

7The respondent school board further submits that part of the applicant’s allegations is that she wants the respondent school board to support her claim for long term disability, but the respondent school board submits this was adjudicated by ManuLife, not the respondent school board, and her application was turned down because of a pre-existing condition.

8The respondent school board submits that even assuming the facts the applicant alleges are proven, they do not constitute discrimination. The respondent school board submits it accommodated the applicant by trying to understand her disability; by arranging the IME and by paying for it. In addition, it did not pursue the request she attend ergonomic training once it received medical information that she should not do so.

9The respondent doctor submits he conducted the IME at the request of the respondent school board and was asked to determine if the applicant had restrictions and required any modifications to her job. He reviewed the medical documents, conducted an examination of the applicant and ultimately prepared two addenda to his initial report.

10The respondent doctor submits, it appears, that the applicant’s main concern is that his report does not reflect her condition properly and that he did not consider all the information available to him, which he submits is not sufficient to establish a Code violation.

11The respondent doctor submits that to make out a violation of the Code, the applicant would have to show the failure of the respondent doctor to do the IME properly was because of her disability, which she has failed to do.

12With respect to the reprisal issue, the applicant alleges the respondent school board reprised against her by doggedly pursuing $7500 the applicant owed to it.

13The respondent school board submits although there was an overpayment owed to it, this was unrelated to the applicant’s disability. In addition, the applicant is unable to point to any adverse effect on her with respect to the overpayment.

DECISION

14The Application is dismissed on the basis that it does not have a reasonable prospect of success.

analysis

15This hearing was conducted pursuant to Rule 19A of the Tribunal’s Rules of Procedure. Rule 19A directs the Tribunal to determine is whether the Application has no reasonable prospect of success. In Dabic v. Windsor Police Service, 2010 HRTO 1994 at paras. 8-9, the Tribunal provided the following guidance:

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. [Emphasis added]

16The applicant alleges the respondent doctor’s assessment of her was deficient and this influenced how the respondent school board treated her with respect to her disability, particularly by advising her she had to participate in ergonomic training.

17The applicant points to no evidence in her possession or that may be reasonably available to her that would support a finding that the respondent doctor discriminated against the applicant in the way in which he conducted his assessment. While the applicant may not agree with the assessment, this is not evidence that supports a violation of the Code.

18As the Tribunal points out in Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389 at para. 17:

The Tribunal does not have the power to deal with general allegations of unfairness. For an Application to continue in the Tribunal’s process there must be a basis beyond mere speculation and accusations to believe that an applicant could show discrimination on the basis of one of the grounds alleged in the Code.

19The applicant’s assertion that her disability was a factor in the way the respondent doctor did his assessment is nothing more than a bald assertion or, to use the words in Forde, “mere speculation and accusations.”

20The applicant also points to no evidence in her possession or that may be reasonably available to her to support her claim that the respondent school board violated the Code in any way.

21While the respondent asserted that in its view the applicant’s claims included that she has a disability and cannot do modified duties; that she has exhausted her WSIB and sick leave; and that the respondent school board is following incorrect information from Dr. Hamer by insisting she do an ergonomic assessment, the applicant at the hearing made submissions only with respect to the ergonomic assessment and the reprisal claim.

22With respect to the allegations that she cannot do modified duties and that she has exhausted her WSIB and sick leave, the applicant points to no evidence in her possession or that may be reasonably available to her that would establish a link between these allegations and a violation of the Code.

23With respect to the ergonomic assessment, she admits she did not have to attend and that she does not remember the school board disciplining her for not doing so.

24With respect to the reprisal claim, the applicant asserts only that the respondent school board engaged in reprisal by sending her a letter notifying her of an overpayment.

25In an application alleging reprisal, the following elements must be established as set out at para. 33 of Noble v. York University, 2010 HRTO 878, as follows:

a. An action taken against, or threat made to, the complainant;

b. The alleged action or threat is related to the complainant having claimed, or attempted to enforce a right under the Code; and

c. An intention on the part of the respondent to retaliate for the claim or attempt to enforce the right.

26There is no strict requirement that the complainant has filed a complaint or application under the Code (para. 34 of Noble).

27Other than the fact that the respondent school board sent a letter to the applicant notifying her of a salary overpayment, the applicant points to no evidence that would support the reprisal allegation. The applicant shows no link between the respondent school board’s overpayment letter and the applicant’s assertion of her rights under the Code. She also points to no evidence that the respondent school board sent this letter intending to retaliate against the applicant for claiming or attempting to enforce her Code rights.

28Given the absence of any proposed evidence, or any evidence that may be reasonably available to the applicant, on which a link might be established, I must conclude that the applicant has no reasonable prospect of success of proving discrimination on the basis of any of the alleged grounds.

ORDER

29The Application is dismissed.