Guydos v. Great-West Life, 2015 HRTO 1330

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Deborah Guydos Applicant

-and-

Great-West Life, Morneau Shepell Ltd., Manulife Financial, Sun Life Assurance Company of Canada Respondent

DECISION

Adjudicator: Leslie Reaume Date: October 6, 2015 Citation: 2015 HRTO 1330 Indexed as: Guydos v. Great-West Life

APPEARANCES

Deborah Guydos, Applicant Self-represented

Great-West Life, Respondent Jody Hecht, Counsel

Morneau Sheppell Ltd., Respondent Roslyn Kogan, Counsel

Manulife Financial, Respondent Sophia Zaidi, Counsel

Sun Life Assurance Company of Canada, Respondent Mei-Mei K. Clarke, Counsel

1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the “Code”) alleging reprisal and discrimination on the basis of sex and disability in the provision of services.

2The applicant worked as a letter carrier for Canada Post Corporation from 1994 to 2012. She was on leave from 1999 until her termination in 2012 except for a brief period in 2006 when the union successfully negotiated a return to work. In 1999 the applicant went on leave because of what she alleges to be the disabling effects of sexual harassment. When she returned to work in 2006 the applicant injured her back and did not return to work after that. The distinctions between these two periods of disability are important to the applicant. Part of her Application involves allegations that she was not provided with the disability benefits she was entitled to for her back because of her prior disability.

3The applicant had not worked since 2006 and was served notice by her employer in February, 2010 that she had failed to provide updated medical information and would be terminated effective April 2, 2010. The applicant’s union filed a grievance dated February 26, 2010, which had the effect of delaying her termination until the grievance could be resolved. The applicant was then advised on June 22, 2011 that she was approaching the end of the maximum sick leave period allowed under the collective agreement. The letter also indicated that her employment would be terminated on September 7, 2011, if she was not able to return to work by then. On July 11, 2011, the applicant’s employer wrote to advise her that she was to report to work on July 18, 2011, unless she submitted sufficient medical documentation to justify her absence.

4On March 28, 2012, the applicant’s union withdrew the grievance filed on February 26, 2010 and the arbitrator concluded that the operative date of the applicant’s termination was April 2, 2010, a decision which was ultimately upheld by the Federal Court of Appeal on January 20, 2014 (Guydos v. Canada Post Corporation 2014 FCA 9).

5While the applicant’s former employer is federally regulated, this Application was filed against a number of provincially regulated insurance and disability management organizations. The applicant alleges discrimination against the respondents with respect to her efforts to obtain disability benefits and return to work.

Decision

6I have determined that the applicant’s allegations have no reasonable prospect of success and accordingly, the Application should be dismissed.

Procedural Background

7The Application was received by the Tribunal on August 23, 2012.

8The respondents named by the applicant in the original Application were Great-West Life (“GWL”), Morneau Sheppell Ltd. (“Morneau”) and Manulife Financial (“Manulife”). The applicant cited the grounds of disability, gender identity, family status, record of offences, association with a person identified by a ground, and reprisal. The areas of alleged discrimination included employment as well as goods, services, and facilities.

9In the original Application, the applicant made a number of allegations which were difficult to understand. She alleged for example, that the respondents had collaborated with her employer to terminate her because of a pre-existing disability and the fact that she had previously reported being the victim of sexual harassment.

10There were statements made about the respondents, but no specific facts included in the Application which would support the applicant’s allegations. On August 31, 2012, the Tribunal wrote to the applicant indicating that her Application could not be processed and described the steps the applicant would have to take to complete the Application.

11On September 14, 2012, the applicant responded to the Tribunal’s request for further information. At this stage, the applicant added Sun Life Assurance Company of Canada (“Sun Life”) to her list of respondents along with the following particulars:

• Manulife committed fraud in order to assist in the termination of her employment because she had previously reported being sexually harassed; released documents to a third party without her consent and gave false information to Morneau; interfered and harassed her; threatened her with job loss; lied to a doctor about the purpose of an independent medical examination (“IME”);
• GWL sent the applicant a bill for $16,000.00 for an overpayment while she was on sick leave; discriminated against her for reporting her disability; cut off her benefits;
• Morneau assisted the employer in failing to accommodate her return to work and assisted in her termination; and
• Sunlife refused to process disability benefits for the applicant’s back injury.

12On October 31, 2012, the Tribunal issued a Case Assessment Direction (“CAD”) advising the parties that the Tribunal would hold a summary hearing to determine whether the Application should be dismissed for no reasonable prospect.

13On November 13, 2012, counsel for Sun Life wrote to the Tribunal to advise that during the course of litigation with the applicant in 2011, the applicant signed a full and final release where she agreed not to initiate any proceeding arising out of the circumstances which gave rise to her disability claim for long-term disability benefits. There is a dispute between the applicant and Sun Life about the scope of the release and whether the disability benefits for the back injury were captured in that agreement.

14Following an exchange of emails on scheduling dates for the summary hearing, a notice was sent to the parties on February 27, 2013 setting a half-day summary hearing by teleconference for May 13, 2013.

15The parties were permitted to file documents in advance of the summary hearing. Documents were filed by Morneau and the applicant.

16The hearing was held on May 13, 2013. During the summary hearing, I advised the applicant that her allegations remained unclear. I specifically advised the applicant that her written materials and oral submissions had not clarified for me the basis of her claim that she had experienced discrimination by the named respondents. The applicant made a request to file further material and case law in support of her allegations and I granted that request.

17The applicant also agreed to withdraw the Application against GWL, although she later sought to have GWL added back to the Application as a respondent. Given my finding that this Application has no reasonable prospect of success, I do not consider it necessary to resolve the matter of the applicant having withdrawn her consent to remove GWL from the Application.

18The applicant requested an extension to file further material which was granted. On June 20, 2014, the applicant filed an Amended Application and at the same time requested another 3-month extension in order to review her documents and file further material in support of her Amended Application. This request for a further extension was denied.

19I directed that the summary hearing would resume for one hour for final oral submissions from the applicant on the allegations contained in her Amended Application. The hearing took place on March 2, 2015.

20In advance of the first and second summary hearing sessions, the applicant filed a significant number of documents. Following the hearing on March 2, 2015, the applicant filed more documents, all of which I have reviewed and taken into consideration in determining this matter.

The Amended Application

21The Amended Application provided some clarification of the applicant’s allegations. The applicant narrowed the prohibited grounds she intended to rely on to disability, sex and reprisal.

22In the narrative portion of the Amended Application, the applicant states that she was on sick leave for PTSD in 1999 because of sexual harassment. The applicant did not return to work until her union was successful in reinstating her in 2006. In 2006 while she was at work, she suffered a back injury. The applicant has not returned to work since September 2006.

23The allegations against the respondents appear to be that there was collusion on the part of the insurers to deny the applicant disability benefits and to assist her employer in terminating her by finding her incapable of returning to work. The applicant alleges that there was a concerted effort by all of the respondents to falsify information causing her to lose her benefits and her job. The applicant alleges that the reason for this collusion is that she previously complained of sexual harassment and had a pre-existing disability.

The Summary Hearing Process

24The role of the applicant in the summary hearing is to describe to the Tribunal the evidence they intend to rely on to support their belief that they experienced discrimination. The Tribunal’s role is to consider whether the allegations fall under the Tribunal’s authority and whether there is evidence which will reasonably be available to support the allegations. Where an applicant believes that he or she has been the victim of discrimination, but is unable to point to evidence which would support that belief, an application will be found to have “no reasonable prospect of success”.

25While the primary focus in the summary hearing is on the applicant’s evidence, the respondent’s explanation may be considered where the parties agree on the facts or where it is plainly obvious that a fact must be true. However, the Tribunal is very careful to ensure that an application is not dismissed at the summary hearing stage simply because the respondent has an alternative explanation of the events. The Tribunal is mindful of the fact that in some cases an application must proceed further in the hearing process because the respondent is the party who has control over the evidence which could favour the applicant’s case.

26The Tribunal is not empowered to remedy general allegations of unfairness in areas such as employment, services or accommodation. Discrimination in the legal sense requires proof that unfair treatment is based, at least in part, on a person’s race, gender, disability or other prohibited ground under the Code. In other words, the ground must somehow be a factor in the adverse treatment.

27At the summary hearing stage, the Tribunal is not determining whether the applicant is telling the truth or assessing the impact of the treatment they experienced. At this stage, the Tribunal assumes that the applicant is telling the truth unless there is clear evidence to the contrary which the applicant does not dispute. However, that does not mean that the Tribunal accepts the applicant’s assumptions and beliefs about why they were treated unfairly. The purpose of the summary hearing is to determine if there is evidence available to support the applicant’s assumptions and beliefs that the unfair treatment they experienced arises from a prohibited ground under the Code. Making this connection is an important part of proving discrimination.

28In order to proceed to a full hearing some evidence must exist, which goes beyond the applicant’s feeling or belief that the ground played a role in what they experienced. Many circumstances play a role in assisting the Tribunal in determining whether a person has experienced discrimination in the legal sense. However, if the applicant is unable to point to evidence, beyond their own assumptions or belief, an application may be found to have no reasonable prospect of success.

29If the Tribunal determines that an application has no reasonable prospect of success it will be dismissed. If the Tribunal is unable to determine that an application has no reasonable prospect of success, it will move to the next stage in the hearing process. In some cases, the Tribunal finds that only part of an application will move ahead, while part is dismissed.

Conclusions

30Having carefully considered the applicant’s allegations, I find that there is no reasonable prospect that the applicant can succeed under the Code. This finding is based on a number of factors.

31The first is that despite the many documents filed by the applicant and the two opportunities we have had to meet by tele-conference, the applicant’s allegations remain vague and speculative.

32The second, and more important reason, is that the applicant is not able to point to evidence which would support her belief that there is a connection between how she feels she was treated by the respondents and a prohibited ground under the Code. The applicant is not expected to point to direct evidence of discrimination. However, she must be able to point to the existence of some evidence, even if it is circumstantial evidence, which would make it possible for the Tribunal to conclude that the applicant’s allegations are more than just speculation and belief.

33For example, the applicant alleges that Sun Life refuses to provide her with disability benefits for her back injury. It is not disputed by the applicant that Sun Life refuses to provide disability benefits for her back injury because of a release that the applicant signed in 2011. The applicant and Sun Life interpret the release in a different way. The applicant believes her disability benefits for her back injury are not included in the scope of the release. Sun Life takes the opposite position. However, even if I were ultimately to conclude that the applicant’s interpretation is correct, this is not an allegation of discrimination, but rather, a dispute over the terms of a release. While the applicant may consider the interpretation applied by Sun Life to be unfair and disadvantageous to her, there is no connection to a prohibited ground under the Code.

34Similarly, the applicant’s allegations against Manulife go back to 2008, when Manulife was the disability management company for the applicant’s employer. Manulife sent the applicant on an independent medical examination. The applicant argues that this was unnecessary and inappropriate given that she was suffering from a back injury at the time. She alleges that the outcome of the IME, which concluded that she was permanently disabled and incapable of returning to work, was an important factor in the termination. Again, the applicant believes that Manulife colluded with her employer by committing fraud with respect to the purpose of the IME, in order to support her termination because of past allegations of sexual harassment and her pre-existing disability.

35However, there is no evidence that the applicant can point to which would support this belief, including evidence which would support a finding that the respondent intentionally engaged in reprisal against the applicant because of her pre-existing disability and her complaints of sexual harassment. Unlike a finding of discrimination, a finding of reprisal requires evidence from which a Tribunal could draw an inference that the respondent’s actions were intentional.

36GWL and Morneau took over the health benefits and the short-term disability management program for Canada Post Corporation from Manulife in 2011.

37GWL is alleged to have sought repayment from the applicant of an over-payment of health and dental coverage retroactive to 2010 when the applicant was terminated. This is not an allegation of discrimination but rather a complaint on the part of the applicant that it was unfair of GWL to seek repayment of the over-payment from her as they had been instructed to do by her employer. Since there were no allegations of discrimination against GWL the applicant agreed to release GWL from the proceeding. The applicant subsequently withdrew her consent. In any event, there is no connection between the alleged actions of GWL and a prohibited ground under the Code, and as a result, I would dismiss those allegations as having no reasonable prospect of success.

38Morneau took over the administration of the short-term disability program. Morneau provided its entire case file on the applicant as part of the summary hearing process. The applicant acknowledges that she made inquiries in 2012 about whether Morneau had received any information about her from Manulife. She was concerned, for example, about Morneau having a copy of the IME from 2008, to the point that she threatened to sue Morneau if the company had retained a copy of the IME. The applicant also retained legal counsel and by March 2012, communications between the applicant and Morneau were taken over by counsel.

39It is not clear what the applicant was seeking from Morneau. No claim was ever adjudicated by Morneau. The applicant appears to be of the view that she had a file with Manulife that was not being actively managed by Morneau. The applicant appears to be alleging that Morneau assisted the employer in refusing to accommodate her and ultimately in terminating her employment. Again, the allegations are vague and the applicant is unable to point to any evidence which would substantiate this belief on her part.

40As I indicated earlier in this Decision, at this stage, the Tribunal assumes that the applicant is telling the truth unless there is clear evidence to the contrary which the applicant does not dispute. However, that does not mean that the Tribunal accepts the applicant’s assumptions and beliefs about why they were treated unfairly. In this case, the applicant is unable to point to evidence which would support her assumptions and beliefs that the alleged conduct of the respondents is connected to her pre-existing disability and previous complaints of sexual harassment. There is also no evidence which the applicant can point to which would support her belief that the respondents were engaged in colluding with her employer to support her termination because of the grounds of sex and disability.

41Fundamentally the applicant believes that she was treated unfairly by her employer, her employer failed to properly accommodate her return to work and with the help of the respondents who engaged in fraud and collusion, terminated her employment and prevented her from receiving disability benefits. There is no evidence which the applicant can point to which would support these speculations and beliefs as they relate to the respondents named in this Application. In addition, the actions of the applicant’s federally regulated employer, which would necessarily have to be scrutinized in determining the applicant’s allegations, are not within this Tribunal’s jurisdiction.

42In all of these circumstances, I find that there is no reasonable prospect that this Application will succeed.

43The Application is dismissed.