HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Rajiv Sharma
Applicant
-and-
The Regional Municipality of Waterloo Police Services Board,
Waterloo Regional Police Association and
Acclaim Ability Management Inc.
Respondents
INTERIM DECISION
Adjudicator: Mark Hart
Indexed as: Sharma v. The Regional Municipality of Waterloo Police Services Board
APPEARANCES
Rajiv Sharma, Applicant
Osborne Barnwell, Counsel
The Regional Municipality of Waterloo Police Services Board, Respondent
Don Jarvis and Daina Search, Counsel
Waterloo Regional Police Association, Respondent
Nini Jones, Counsel
Acclaim Ability Management Inc., Respondent
Peter Straszynski and Carolyn Johnston, Counsel
1This Application was filed on February 22, 2012 and alleges discrimination with respect to employment because of disability, race, colour, place of origin, ethnic origin, and reprisal contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code").
2This matter proceeded to a preliminary hearing on June 18 and 29, 2015 for the purpose of hearing evidence and oral submissions from the parties on the following issues: (1) the applicant's requests to amend his Application; (2) the respondent, The Regional Municipality of Waterloo Police Services Board's ("WRPSB"), request for part of the Application to be dismissed pursuant to s. 45.1 of the Code; (3) the respondents' request for part of the Application to be dismissed for delay; and (4) the respondent, Acclaim Ability Management Inc.'s ("Acclaim"), request to be removed as a party respondent to this proceeding.
3I will address each of those issues in turn.
Applicant's request to amend
4By Request for Order dated September 15, 2014, the applicant sought to amend his Application to raise further allegations against the WRPSB and Acclaim and also against the Waterloo Regional Police Association ("WRPA"). As the applicant's requests to amend were addressed separately in his Request for Order and in oral argument, I will deal with them separately.
5In considering a request to amend an Application, the Tribunal generally considers the nature of the proposed amendments, the reasons for the amendments, the timing of the request to amend, and the prejudice to the respondent: see, for example, Dube v. Canadian Career College, 2008 HRTO 336; Wozenilek v. 7-Eleven Canada Inc., 2009 HRTO 926; Dunford v. Holiday Ford Sales, 2009 HRTO 1563; and Shakhnazarov v. George Brown College, 2011 HRTO 1917.
6While s. 34(1) of the Code (which imposes a one year period from the date of the last alleged incident of discrimination to file an application to this Tribunal) applies only to when a person may apply to the Tribunal, and not to when an applicant can seek an amendment, s. 34(1) does set out the expectation that an applicant will act in an expeditious manner and not unduly delay alerting respondents to new allegations so that they might know the case against them. It also acknowledges that the Tribunal, in exercising its discretion, can take into account whether respondents are prejudiced: see Khokher v. Intercon Security Limited, 2011 HRTO 1493 and Anderson v. Stieber Berlach LLP, 2012 HRTO 1471.
Request to amend Application as against the WRPA
7With his Request for Order to amend his Application to raise new allegations as against the WRPA, the applicant submitted a 17 page, single-spaced document setting out his proposed amendments. This document raises allegations against various officials with the WRPA dating back to September 2003, some eleven years prior to when the amendments were sought. The bulk of these proposed amendments deal with the period of time preceding the applicant's medical re-integration with the Waterloo Regional Police Service ("WRPS") in April 2009, some five and a half years before the amendments were sought. The remaining allegations set out in the proposed amendments raise allegations that relate to the time period already covered by the existing Application, with the most recent allegation dating from March 2012, some two and a half years prior to the amendments being sought.
8The difficulty I have with allowing these amendments as against the WRPA at this stage of the proceeding is that the issue of the applicant's allegations as against the WRPA already proceeded to a summary hearing before this Tribunal in October 2012 and were the subject of an Interim Decision dated April 30, 2013 (2013 HRTO 722). At the summary hearing, the applicant had the opportunity to file materials and make oral submissions on the issue of whether his allegations as against the WRPA had a reasonable prospect of success.
9As indicated in the Tribunal's Interim Decision, the applicant's allegations against the WRPA primarily related to the period from the time of his medical re-integration to work on April 14, 2009 until February 13, 2012, and relate to the applicant's efforts to be accommodated and covered for his sick time during the period in question. The applicant's allegations as against the WRPA during this time period were reviewed in detail by the Tribunal, and it was determined that only two of the applicant's allegations would proceed further in the Tribunal's process. As the applicant already has been afforded a full opportunity to raise allegations as against the WRPA that relate to this time period, in my view it would be inappropriate to allow him the ability to amend his Application to raise additional allegations as against the WRPA almost two years after the summary hearing and a year and a half after the issuance of the Tribunal's Interim Decision.
10I say this with one caveat. The Tribunal's Interim Decision allowed the applicant to proceed with an allegation that the WRPA failed to accommodate him and discriminated against him on the basis of race when it failed to grant him access to hours in the Central Sick Leave Bank ("CSLB") during two periods of time, with the latter period being from February 12, 2012 to June 2012. In fact, what occurred at this time is that on January 30, 2012, Acclaim, which is a third party retained by the WRPS further to a Letter of Understanding with the WRPA to adjudicate certain claims for sick leave benefits including claims for access to the CSLB, had withdrawn support for the applicant's access to these benefits as a result of his failure to attend an Independent Medical Examination ("IME") scheduled for January 26, 2012. As a result, on February 1, 2012, the WRPA advised the WRPS that the applicant was no longer covered under the CSLB. This resulted in the discontinuance of the applicant's full regular salary effective February 12, 2012. This also resulted in the sick time which had been accumulated by the applicant from January 9, 2012 being re-classified as unsupported, unauthorized time.
11The applicant was advised by Acclaim that, if he attended an IME and Acclaim received confirmation of his attendance at an IME, then Acclaim would review and adjudicate the applicant's absence from January 9, 2012 forward following receipt of the IME report. The applicant ultimately did attend an IME on March 16, 2012. Following receipt and review of the IME report, Acclaim supported the applicant's medical absence from January 9 to March 5, 2012, but not beyond that date on the basis that a suitable offer of modified work had been made to the applicant. The applicant appealed Acclaim's decision and ultimately received confirmation from Acclaim that its decision not to support the applicant's sick leave as of March 5, 2012 was overturned and reinstatement of benefits was recommended. As a result, in June 2012, the WRPA approved the applicant's access to the CSLB from March 5, 2012 forward. In the end, the applicant was fully paid from the CSLB for the entire period from January 9 to June 12, 2012 and beyond. This is not disputed by the applicant.
12The applicant's position, as I understand it, is that he experienced discrimination and a failure to accommodate when his access to the CSLB was cut off due to his failure to attend the IME scheduled for January 26, 2012. Even though he ultimately was covered from the CSLB for the entirety of the time period at issue, as a result of his attendance at the IME on March 16, 2012 and due to the provision of additional medical reports, the applicant nonetheless takes the position that it is a violation of the Code for his access to CSLB benefits to have been withheld as a result of his failure to attend the January 26, 2012 IME and pending his attendance at the March 16, 2012 IME and provision of further medical reports.
13The WRPA takes the position that, as a result of the Tribunal's Interim Decision dated April 30, 2013, the allegation that was allowed to proceed was premised on the notion that the applicant had never received his CSLB benefits for the period from February 12 to June 2012. The WRPA submits that, as the applicant has now acknowledged that he did in fact receive those benefits, there is no longer any basis for his allegation and it ought to be dismissed.
14With respect, I do not read the Tribunal's Interim Decision so narrowly. The applicant's allegation, as framed at para. 12(a) of the Interim Decision, is that the WRPA failed to grant the applicant access to CSLB benefits during two periods, including the period from February 12 to June 2012. That is true, notwithstanding that the applicant subsequently received retroactive payment for that entire period. There appears to be no dispute that the applicant's access to CSLB benefits was cut off based on his failure to attend the January 26, 2012 IME and access to these benefits was made conditional on his attendance at a subsequent IME. This is the essence of what the applicant alleges to have been a violation of his rights under the Code. Whether or not that is the case is a matter for determination at a hearing on the merits. But I do not see anything in the Interim Decision that forecloses the applicant's ability to proceed with this allegation.
15I review all of this for the purpose of addressing certain specific allegations raised in the proposed amendments, namely paras. 60, 73 and 74 of Schedule A to the applicant's Request for Order, which raise allegations regarding the WRPA's role in relation to the requirement for the applicant to attend an IME in order to gain access to CSLB benefits. In my view, these proposed amendments speak directly to an issue that was identified by the applicant at the summary hearing and allowed to proceed as a result of the Tribunal's Interim Decision. While the amendment request was made by the applicant a considerable period of time after the events at issue, I note that these events were still emerging at the time the Application was filed on February 22, 2012, and were raised at the summary hearing and addressed in the Interim Decision. I also note that the Interim Decision set out a schedule for the WRPA to file its Response (which had not been required in advance of the summary hearing) and for the applicant to file a Reply. In the applicant's Reply dated July 2, 2013 at para. 8(n), the applicant sets out the gist of his allegation regarding this period of time and the denial of access to CSLB benefits due to the requirement for him to attend an IME.
16As a result, I am prepared to grant the applicant's request to amend his Application to raise the allegations as against the WRPA as set out in paras. 60, 73 and 74 of Schedule A to the applicant's Request for Order.
17With regard to the proposed amendments relating to the time period pre-dating April 14, 2009, I note that these allegations are grossly out of time. Indeed, for the purpose of the summary hearing, the applicant submitted certain materials dating to the time period prior to April 14, 2009 which were expressly addressed by the Tribunal. At para. 53 of the Interim Decision, it was made clear to the applicant that, if the applicant was asserting that there are additional allegations as against the WRPA that occurred in the period that pre-dates the events in the Application, then the applicant was required to do so in the appropriate manner by filing a request to amend and having it addressed in the normal course.
18Notwithstanding this direction from the Tribunal on April 30, 2013, the applicant waited almost one and a half years to make a request to amend his Application to raise allegations against the WRPA that pre-date the time period addressed in the Application. As stated above, these allegations extend back some five and a half to eleven years prior to the filing of the request to amend. I am not prepared to allow the Application to be amended in such circumstances.
19Finally, I note that at the preliminary hearing, the applicant withdrew his request to amend his Application to raise an allegation arising out of the WRPA's failure to fund his legal representation in this proceeding.
Request to amend Application as against WRPSB and Acclaim
20At the preliminary hearing, the applicant withdrew his request to amend his Application against the WRPSB in relation to paras. 5 to 65 of Schedule A.1 to his Request for Order, on the basis that these allegations relate to events that formed part of the proceeding before the Ontario Human Rights Commission ("OHRC") (addressed below).
21As a result, I will only address the remaining paragraphs of the requested amendments sought as set out in Schedule A.1 and as emerged at the hearing. With regard to paras. 1 to 4 of Schedule A.1, there are clearly elements of these paragraphs that are inextricably intertwined with the allegations made in the paragraphs that were withdrawn by the applicant. For example, para. 2 speaks to certain matters having been brought to the attention of the OHRC, including allegations of obstruction of justice and intimidation of witnesses. The first two sentences of para. 3 also refer to the OHRC process and allegations that pre-date the applicant's medical re-integration in April 2009, all of which have been withdrawn. The last sentence of para. 3 alleges that the WRPSB and the WRPA worked in conjunction and have been co-conspirators since 2003, which encompasses the period of the OHRC proceeding and includes the allegations that have now been withdrawn. Para. 4 once again references the alleged intimidation of witnesses in the OHRC proceeding. These four paragraphs are framed as an "overview" and the remainder of these paragraphs are more in the nature of general submissions than a request to amend the Application to add specific allegations. Accordingly, the request to amend the Application to add paras. 1 to 4 of Schedule A.1 is denied.
22Paras. 65 to 71 and the first sentence of para. 72 deal with events during the period from December 23, 2008 to before the applicant's medical re-integration on April 14, 2009. The allegations raised in these paragraphs are grossly out of time, having occurred some 5 to 6 years prior to the amendments being sought. I will discuss below the WRPSB's request for dismissal of certain allegations in the Application due to delay, and the applicant's argument that events that occurred more than one year prior to the filing of the Application can be regarded as a "series of incidents" extending to and including allegations within the one year period. For the reasons set out below, I do not accept this argument and my reasoning would apply equally to the allegations from 2008 and 2009 raised in paras. 65 to 71 and the first sentence of para. 72. Accordingly, the applicant's request to amend his Application to include these paragraphs is denied due to his delay in raising them.
23The remainder of para. 72 and paras. 73 to 81 deal with events during the period of the applicant's medical re-integration from April 14, 2009 to September 28, 2010. As stated above, I will be dealing with allegations from this period that were raised in the Application in the context of the delay issue. For the reasons set out below, I do not accept the applicant's argument that allegations from this period that were raised in the Application can properly be regarded as forming a "series of incidents" that extends to and includes allegations within the one year period prior to the filing of the Application. The same reasoning applies to the amendments requested in the above-referenced paragraphs. This request to amend also is denied due to the applicant's delay in raising these allegations.
24In the remaining paragraphs of Schedule A.1, the applicant raises the following new allegations and matters:
a. The applicant alleges that on or about January 28, 2011, he raised concerns with a Sergeant about having been the victim of a theft of paint and conspiracy to commit an indictable offence, but his concerns were not investigated. He also alleges that he was told by a Staff Sergeant that the police investigators did not have time for "make work projects" in relation to the applicant's allegations. This is alleged to have been a reprisal against the applicant for having filed a complaint with the OHRC. (paras. 82 to 84);
b. The applicant alleges that during the period from September 1, 2012 to January 1, 2013, he was the subject of a wiretap of his private communications. This too is alleged to have been a reprisal. (para. 85);
c. The applicant references an accommodation alleged to have been afforded to a White WRPS constable by transferring him to work in the Courts in March 2014 without the involvement of Acclaim. This is cited as another example of preferential and differential treatment. (paras. 86 to 87); and,
d. The applicant references a management meeting alleged to have been held on April 29, 2014 which included a discussion of the conduct of an Acclaim employee who dealt with the applicant in relation to events at issue in the Application. This is advanced as evidence supporting the applicant's allegations of discriminatory and harassing conduct by this Acclaim employee. (para. 88).
25During the course of the preliminary hearing, the following additional allegations were raised by the applicant on the basis of certain other materials appended to the Request for Order though not formally included in the requested amendments set out in Schedule A.1. These were:
a. That the WRPS discriminated against the applicant because of disability, race and reprisal and failed to properly accommodate his needs in the context of a proposed return to work in March 2012;
b. That the WRPS violated the applicant's rights under the Code when it took steps in March 2012 to enforce a costs award made against the applicant as a result of a court proceeding in 2006; and,
c. That the applicant was discriminated against on January 13, 2014 when a WRPS Sergeant did not pursue charges against a tenant of the applicant who had caused property damage.
26With regard to the allegations set out in paras. 24(a) and (b) and in para. 25(b) above, I note that these allegations arise from events that are alleged to have occurred from three and a half years to one and a half years prior to the request for amendment having been made. With regard to the allegation described in para. 24(a), this alleged incident had occurred over a year prior to the filing of the Application, but was not raised. With regard to the wiretap allegation (para. 24(b)), based upon the documents submitted at the hearing, I note that the applicant was informed of the wiretap by letter dated March 19, 2013 from the Department of Justice and there is no basis other than the applicant's speculation that the WRPS had any involvement with the wiretap. The applicant's request for information about the wiretap was denied by the Department of Justice by letter dated April 30, 2013, as all documents relating to a wiretap authorization are to be kept secret unless otherwise ordered by a judge. The applicant has not taken any steps to obtain a Court order granting him access to any such documents. With regard to the allegation described in para. 24(b) above, the applicant's own notes indicate that he was informed of the steps taken by the WRPSB to enforce the costs award on April 12, 2012, but he took no steps to raise this allegation in the context of this proceeding even in the requested amendments as set out in Schedule A.1 of the Request for Order. This only emerged as an allegation of reprisal at the hearing in June 2015.
27As a result, on the basis of the applicant's delay in raising these allegations, the request to amend the Application to include paras. 82 to 85 of Schedule A.1 is denied, and the applicant's request to amend his Application to include an allegation about the steps taken to enforce the costs award is also denied. With regard to the wiretap allegation, I also deny the applicant's request based upon the nature of the allegation, and the absence of any basis beyond his own speculation to tie this allegation to the WRPS.
28With regard to the allegation as set out in para. 25(c) above, I note that this allegation also was not included in the requested amendments as set out in Schedule A.1 that were filed with the Tribunal in September 2014, and only emerged as an allegation at the preliminary hearing in June 2015. As a result, this incident was only raised as an allegation of a violation of the Code almost a year and a half after it took place. With regard to the nature of the allegation, there also, in my view, is nothing to tie this allegation to the timely allegations at issue in this Application, which focus on the treatment of the applicant primarily in relation to his disability and need for accommodation and his entitlement to sick leave and/or CSLB benefits during the period from April 2011 to June 2012. The incident complained of relates to the exercise of a police officer's discretion not to lay property damage charges, and the Sergeant who exercised this discretion is not implicated in any prior relevant involvement in this matter. As a result, due to the applicant's delay in raising this allegation and due to the nature of the allegation and its lack of connection to the matters at issue in this proceeding, the request to amend the Application to include this allegation is denied.
29With regard to the allegation described in para. 25(a) above, I note that the issue of the applicant's proposed return to work in early March 2012 occurred after the Application was filed in February 2012 and was raised by the WRPSB in its Response at paras. 85 to 87. I also note that, from the documents before me and as referenced above, Acclaim's determination that the applicant had been offered suitable work by the WRPS formed the basis of its decision in April 2012 to only support payment of benefits to the applicant for the period from January 9 to March 5, 2012 and not beyond. In the applicant's Reply to the WRPSB Response, which was filed with the Tribunal on June 27, 2012, the applicant takes issue with the WRPSB's assertion that he was offered suitable work in early March 2012, on the basis that he felt his medical conditions were being ignored and that he was being forced into a toxic work environment.
30While the applicant should have taken steps to request an amendment to his Application to include this allegation at an earlier time, it is my view that the allegation that the applicant was not offered suitable work in early March 2012 was raised in his Reply filed only a few months later. I also note that this allegation forms part of a continuous series of events that was unfolding at the time the Application was filed, relating to the issue of the applicant's medical condition and needs for accommodation, the sufficiency of medical documentation to support these needs, the suitability of work that was offered to the applicant during this period, and his ability to access sick leave and/or CSLB benefits. In light of these considerations, the applicant's request to amend his Application is granted to include an allegation that the WRPS discriminated against him because of disability, race and reprisal and failed to properly accommodate his needs in the context of the proposed return to work in early March 2012. As this allegation was not particularized in Schedule A.1 to the Request for Order, the amendment to the Application to be filed by the applicant shall set out all particulars relevant to this allegation.
31Finally, with regard to the proposed amendments as set out in para. 24(c) and (d) above, it is my view that these amendments to the Application set out material facts that are potentially relevant to the applicant's allegations of differential treatment and relate to timely events. These amendments are granted.
Request to dismiss under s. 45.1
32The respondent WRPSB has requested that certain portions of the Application be dismissed pursuant to s. 45.1 of the Code or as an abuse of process, on the basis that these allegations already have been appropriately dealt with in a proceeding before the OHRC. The specific paras. at issue are paras. 4 to 10 and the last sentence of para. 30 of Schedule A to the Application.
33The applicant previously had filed a complaint with the OHRC dated November 26, 2004. This complaint proceeded through the OHRC's investigative process, and ultimately was dismissed by OHRC decision dated September 23, 2008. This decision was upheld on reconsideration on December 16, 2008.
34At the preliminary hearing, the applicant consented to the striking of paras. 4 to 10 of the Application. Accordingly, I shall make an order striking these paragraphs. However, I note that the Application has raised an allegation of reprisal, on the basis that certain actions or conduct of the respondents were because of the prior OHRC complaint and proceeding. While the hearing in this matter will not re-visit the truth or otherwise of the allegations dealt with in the OHRC proceeding, the fact that the applicant filed a complaint with the OHRC, the nature of the issues raised and dealt with in the OHRC proceeding, and the individuals involved in that proceeding may be relevant to the applicant's reprisal allegations.
35With regard to the second sentence of para. 30, this sentence states that the applicant was told to report to a particular Staff Sergeant, who the applicant alleges was directly involved in a "criminal obstruction of justice" in the context of the OHRC proceeding. The issue of whether there was obstruction or interference in the OHRC proceeding was raised by the applicant before the OHRC and relates to alleged events that pre-date 2008. I note that the applicant has agreed to the striking of para. 10 of the Application, which includes an allegation that witnesses were intimidated from coming forward by the WRPS. In my view, consideration of the allegation as set out in the second sentence of para. 30 would require me to make a finding as to whether in fact this particular Staff Sergeant had been involved in any obstruction of justice, which is a matter that arose and previously was raised by the applicant in the context of the OHRC proceeding. As a result, it is my view that this sentence also should be struck from the Application.
Delay
36Section 34(1) and (2) of the Code state:
34.(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 incidents to which the application relates; or
(b) if there was 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.
37If, as in the instant case, there are incidents of alleged violations of the Code within the one year period, but other incidents of alleged violations that are outside the one year period, then this Tribunal needs to consider whether the untimely alleged incidents form part of a "series of incidents" that extends to and includes any of the timely alleged incidents, within the meaning of s. 34(1)(b) of the Code.
38In determining whether prior alleged incident(s) form part of a "series of incidents", the Tribunal considers the following factors:
a. What is the last alleged incident of discrimination to which the Application relates?;
b. Do the allegations relate to a series of separate and independent incidents of discrimination or do they relate to the continuing effect of a single incident of discrimination?;
c. What is the nature or character of the alleged discrimination and is it part of a pattern or series of incidents of a similar nature or character?; and,
d. What is the temporal gap between alleged incidents of discrimination?
See Garrie v. Janus Joan Inc., 2012 HRTO 1955 at para. 30.
39With regard to factor (c), when assessing whether the allegations relate to a "series of incidents", the Tribunal will generally consider the nature of the events and whether they may reasonably be viewed as a pattern of conduct or are comprised of incidents relating to discrete and separate issues without some connection or nexus. See, for example, Baisa v. Skills for Change, 2010 HRTO 1621. In Pakarian v. Chen, 2010 HRTO 457, the Tribunal defined the word "series" as "a number of things or events of the same class coming one after another in spatial or temporal succession". A "series of incidents" may be considered to exist where the incidents share a common theme, similar parties and/or circumstances: see Twyne v. Dominion Colour Corporation, 2013 HRTO 1769.
40With regard to factor (d), this Tribunal has held that a gap of more than one year between alleged incidents generally will be considered to interrupt the series: see for example Savage v. Toronto Transit Commission, 2010 HRTO 1360; Chintaman v. Toronto District School Board, 2009 HRTO 1225. This should not be regarded as a rigid rule: Henry v. Waterloo (Regional Municipality), 2011 HRTO 1927. However, where there is a significant gap between alleged incidents, this Tribunal nonetheless will find that the series is broken: Christie v. Trent University, 2013 HRTO 952.
Delay re allegations against the WRPA
41As a result of the summary hearing in this matter held in October 2012, the Tribunal's Interim Decision dated April 30, 2013 and the amendments I have granted above, the allegations as against the WRPA that are raised in this proceeding are as follows:
a. That the WRPA failed to accommodate the applicant and discriminated against him on the basis of race when it failed to grant him access to hours in the CSLB during the period from April 14, 2009 to June 22, 2010 (in this regard, while the Interim Decision refers to a date of June 22, 2011, this date is clearly in error as the applicant returned to full-time hours as of June 22, 2010);
b. That the WRPA and WRPS developed a new Return to Work Policy and Sick Leave Process effective November 21, 2010 to selectively target the applicant which included placing sick leave deficit hours in reserve until employment is completed which he states placed him in an indefinite disadvantage; and,
c. That the WRPA, either directly or through Acclaim, failed to accommodate the applicant and discriminated against him on the basis of race when the applicant was not granted access to CSLB benefits during the period from February 12, 2012 to June 2012.
42I will address the second allegation first. This allegation was allowed to proceed against the WRPA as a result of the Tribunal's Interim Decision dated April 30, 2013 on the basis of a submission by the WRPSB that the WRPA was a "part owner" of the new Return to Work Policy and thus should continue as a respondent in respect of this allegation: see para. 28. However, at the preliminary hearing before me, the WRPSB confirmed that it was solely responsible for this policy. While the WRPS may have consulted with the WRPA in the course of developing the policy and while the WRPA has not taken steps to challenge or grieve the policy, these are not bases upon which a union can be held legally liable under the Code for the alleged discriminatory impact of the policy on the applicant. As a result, given the WRPSB's change of position in relation to the policy, I find that this allegation has no reasonable prospect of success as against the WRPA, and it is therefore dismissed as against the WRPA.
43This leaves the first and third allegations. The third allegation is clearly timely, as the alleged discrimination commenced shortly before the Application was filed and continued thereafter. The issue for me to consider is whether the first allegation properly can be regarded as forming part of a "series of incidents" that extends to and includes the third allegation. I accept the applicant's submission that the alleged discrimination continued throughout the entirety of each period that the applicant was denied access to the CSLB, such that the first period of alleged discrimination ended on June 22, 2010 and the second period of alleged discrimination commenced on February 12, 2012. This, however, results in a gap of some 20 months between these two periods of alleged discrimination. I appreciate the WRPA's position that the applicant was only denied access to the CSLB for a short period of time at the end of 2009 and in early 2010, which would make the gap between these two periods even longer. However, for the purpose of addressing the delay issue, it is not necessary for me to resolve this factual dispute between the parties, and I am prepared to accept the applicant's allegations regarding the periods of time when he was denied access to the CSLB on their face.
44In my view, an almost 20 month gap between the end of the first period of alleged discrimination by the WRPA and the commencement of the second period of alleged discrimination by the WRPA is a significant gap in time that is sufficient to break the chain and prevent these two periods properly from being considered as forming a "series of incidents" within the meaning of s. 34(1)(b) of the Code. As a result, I find that the applicant's allegations regarding the first period of alleged discrimination were not raised in his Application until well beyond the one year period under s. 34(1)(a) of the Code. As the applicant elected not to give evidence at the preliminary hearing on the issue of whether his delay in raising this allegation was incurred in good faith, I have no evidentiary basis to support such a finding. Accordingly, the applicant's allegation regarding the denial of CSLB benefits by the WRPA during the period from April 14, 2009 to June 22, 2010 is dismissed for delay.
45The third allegation raised by the applicant as against the WRPA regarding his denial of access to CSLB benefits during the period from February 12, 2012 to June 2012 will continue in this proceeding and the WRPA will remain as a party respondent in relation to this allegation. As discussed above, I already have rejected the WRPA's submission that the Interim Decision dated April 30, 2013 only allowed this allegation to go forward on the basis that the applicant was never granted these benefits, and I am allowing the allegation to go forward on the basis of the delay in the applicant gaining access to these benefits. Further, at the preliminary hearing and despite Acclaim's role in adjudicating a WRPA member's access to CSLB benefits (discussed in more detail below), the WRPA made it clear at the preliminary hearing that it takes direct responsibility for the decision made not to grant the applicant access to the CSLB at the relevant time, on the basis of his refusal to attend the IME. Accordingly, if that decision is found to have been discriminatory and in violation of the Code, the WRPA is potentially liable for the impact of that decision on the applicant.
46I am aware that, during the course of the preliminary hearing, the WRPA referred me to a letter sent by the WRPA to the applicant dated March 20, 2012, in which the WRPA states that it is difficult for it to assess whether or not an IME is appropriate at that stage but, given the information it had at the time, expressed the view that this did not appear to be an unreasonable request. The letter goes on to invite the applicant to provide any further information to the WRPA or point to evidence that he believed was not given adequate consideration, at which point the WRPA indicated that it was prepared to re-visit its conclusion. I was told that no such further information was provided by the applicant to the WRPA. In my view, this letter does not provide a sufficient basis upon which I can conclude that the applicant's allegation has no reasonable prospect of success. This in my view is a matter for evidence at the hearing. In any event, the letter does not foreclose the issue of whether, based upon the information that the WRPA and/or Acclaim did have at the time the decision was made, the denial of access to CSLB benefits on the basis of the applicant's failure to attend an IME was discriminatory.
Delay re allegations against the WRPSB
47I will start by reviewing the allegations raised in the Application as against the WRPSB and as a result of the amendment I have granted which occurred within the one year period prior to the filing of the Application (or in the case of the amendment, following the filing of the Application).
48The applicant alleges that he experienced discrimination and harassment because of race and disability and reprisal by the WRPSB, either directly or through Acclaim as its agent, as a result of the following:
a. That on April 19, 2011, Acclaim denied the medial accommodations requested by his doctor in a letter dated February 22, 2011 addressed to the Chief of Police (para. 28);
b. That on April 21, 2011, the applicant was ordered back into an operational setting and reporting structure without regard for his medical history and needs, and a discriminatory comment was made about his medical documents (paras. 29 and 30);
c. That on April 22, 2011, the applicant was given a letter of expectations which denied him a last hour lunch as an accommodation, and a further discriminatory comment was made that the applicant was "just a pretty face" (para. 31);
d. That on April 26, 2011, the applicant was sent a further letter by Acclaim regarding the decision that the request for accommodation as set out in the February 22, 2011 letter from the applicant's doctor was unsupported and advising him of the appeal process with Acclaim and that telephone messages were left for the applicant by an Acclaim representative (para. 32);
e. That on April 27, 2011 and following, the applicant was advised by the WRPSB that his sick balance was in deficit by 109 hours and that, as the applicant previously had been advised, sick leave deficits in excess of 120 hours would result in discontinuance of sick benefits authorization and would place him in an unpaid employment status, which threatened him with a "pay cut" contrary to his doctor's recommendations and was done to pressure him into dealing with Acclaim (paras. 33, 36, 37 and 42);
f. That in May 2011, the applicant's use of force options were removed contrary to his doctor's recommendations (para. 35);
g. That on June 2, 2011, Acclaim denied the requests for accommodation set out in a letter from the applicant's doctor dated May 16, 2011 on the basis of insufficient objective medical evidence (para. 43);
h. That sometime prior to July 8, 2011, the applicant was taken out of uniform (para. 45);
i. That on August 22, 2011, Acclaim scheduled an IME against the medical recommendations of the applicant's doctor (para. 47);
j. That on September 9, 2011, the applicant was advised that there was no clearance from Acclaim to allow him to go out on the road (para. 49);
k. That sometime in the summer and/or fall of 2011, the applicant was held back to three hours per day as opposed to the four hours per day authorized by his doctor (para. 53);
l. That on October 29, 2011, an Acclaim representative left a voicemail message on the applicant's home phone against his doctor's recommendations (para. 55);
m. That in late October 2011, the applicant was put on a developmental plan that was contrary to his medical restrictions and that demeaning comments were made to him (paras. 57 and 58);
n. That on November 2, 2011, the applicant's use of force options were once again wrongfully removed (para. 60);
o. That on November 7, 2011, the applicant was placed on front desk duty contrary to his medical restrictions (para. 61);
p. That on January 11, 2012, Acclaim threatened to withdraw its support for the applicant's medical leave unless he attended an IME, which was contrary to his doctor's recommendation (para. 68);
q. That on February 1, 2012, the WRPS wrote to the applicant to confirm that he had been denied support for his medical leave due to his failure to attend the IME and that his salary would be discontinued effective February 12, 2012 (para. 72);
r. That on February 7, 2012, the applicant's doctor notified Acclaim that he would attend the IME under duress provided that the WRPS supported his absence from work, but his salary was still discontinued as of February 12, 2012 (paras. 76 and 77); and,
s. That the WRPS failed to properly accommodate the applicant's needs in the context of a proposed return to work in March 2012.
49In essence, the applicant's main allegations within the one year period prior to the filing of the Application can be summarized as: (1) the failure by Acclaim to support certain accommodations requested by his doctors; (2) the removal of his use of force options and uniform at certain times; (3) requirements that he perform certain work that was inconsistent with his medical restrictions; (4) the making of derogatory or demeaning comments; and (5) the requirement that he attend an IME and the denial of benefits due to his refusal to attend an IME.
50With regard to allegations set out in the Application that occurred prior to the one year period before the Application was filed, such allegations will only be considered to be timely if they can be regarded as forming part of a "series of incidents" within the meaning of s. 34(1)(b) of the Code that extends to and includes the timely incidents of alleged discrimination set out above.
51The allegations raised in the Application as against the WRPSB that occurred prior to the one year period before the Application was filed are that the applicant experienced discrimination and harassment because of race and disability and reprisal due to the following:
a. That upon his return to work on April 14, 2009, the WRPS failed to fully accommodate the applicant in accordance with his work restrictions (I note that there is also an allegation about a "pay cut", but in reality this refers to the allegation against the WRPA that it denied the applicant access to CSLB benefits, which has been dismissed for delay. The only allegation against the WRPS is that it did not write a letter of support to the WRPA, which I do not view as a basis for an allegation of a breach of the Code by the WRPSB.) (para. 11);
b. That the applicant was transferred in October 2009 against medical advice (paras. 19 and 20);
c. That after November 2010, the applicant was assigned more regular operational work against his restrictions and denied his request for more community-related assignments (paras. 23, 24 and 25); and,
d. That the Return to Work Policy was implemented by the WRPS in the fall of 2010 as part of a pattern of differential treatment against the applicant (para. 75).
52At paras. 13 to 15 of Schedule A to the Application, the applicant also raises an allegation about a mediation meeting held in July 2009. For the same reasons as stated in the Tribunal's Interim Decision dated April 30, 2013 for dismissing this allegation as against the WRPA, this allegation also is dismissed as against the WRPSB given that this meeting was held "without prejudice" and mediation was agreed to by the applicant's legal counsel at that time.
53As set out above, the first allegation raised in the Application that is within the one year period prior to the filing of the Application relates to the letter from Acclaim on April 19, 2011 denying the accommodations requested by the applicant's doctor in her letter dated February 22, 2011. As can be seen, the allegations about the failure to fully accommodate the applicant upon his return to work on April 14, 2009 are almost two years prior to the first alleged incident of discrimination within the one year period, and his allegation about the transfer in October 2009 is some 18 months prior to the first allegation within the one year period. Given the significant gap in time between these allegations and the first allegation within the one year period, I find that these two allegations cannot properly be regarded a forming part of a "series of incidents" that extends to and includes allegations within the one year period, within the meaning of s. 34(1)(b) of the Code.
54With regard to the allegation described in para. 47(c) above, this allegation dates to some 15 months prior to the filing of the Application. While there are allegations within the one year period that relate to the alleged denial of accommodations, these allegations relate to the involvement of Acclaim in adjudicating whether the applicant's requests for accommodation were supported by the medical documentation submitted. There is no reference to Acclaim having played any role in the alleged denial of accommodation that the applicant says occurred in November 2010. Further, in relation to the nature of the allegation, I note that the issue of the applicant's request in November 2010 for more community-related assignments does not form part of the accommodations requested by his doctor on February 22, 2011 and on May 16, 2011 which form the basis of the allegations of denial of required accommodations by Acclaim within the one year period (I note that while the doctor's May 16, 2011 letter does refer to "community contacts", this is in the context of requesting that the applicant continue community contacts and foot patrol as opposed to placing the applicant in a community-related assignment that he did not currently have).
55As a result, given the different nature of the allegation about denial of accommodation from November 2010 and the different parties involved, I find that this allegation cannot properly be considered part of a "series of incidents" that extends to and includes allegations within the one year period, within the meaning of s. 34(1)(b) of the Code.
56With regard to the allegation set out in para. 47(d) above regarding the adoption of the Return to Work Policy in the fall of 2010, once again this allegation dates to some 15 or more months prior to the filing of the Application. While there are some allegations within the one year period that pertain to the alleged differential application of this policy to the applicant and/or that applying this policy in the manner and at the time it was done was contrary to medical recommendations made by the applicant's doctor, that is a different matter than an allegation that the policy itself was adopted by the WRPS as an act of discrimination against the applicant. As a result, given the different nature of the allegation, I find that this allegation too cannot properly be considered part of a "series of incidents" that extends to and includes allegations within the one year period, within the meaning of s. 34(1)(b) of the Code.
57In reaching these findings, I have been mindful of the submission made by applicant counsel that I should not parse the applicant's allegations too closely and should look at them holistically as speaking to a pattern of conduct on the part of the WRPS of discriminating against the applicant and failing to provide him with the accommodations he required. However, the mere fact that an applicant has historical allegations that relate to the same general grounds of discrimination raised in relation to allegations within the one year period prior to filing the Application is not a sufficient basis to find that such historical allegations form part of a "series of incidents" within the meaning of s. 34(1)(b) of the Code as this provision has been interpreted by the Tribunal. As set out above, in order to find that an allegation that pre-dates the one year period forms part of a "series of incidents" that extends to and includes an allegation or allegations within the one year period, this Tribunal needs to look at and consider the factors which have been identified in the Tribunal's jurisprudence. It is in applying those factors that I have found that the allegations against the WRPSB raised in the Application that pre-date the one year period prior to the filing of the Application do not form part of a "series of incidents" that extends to and includes an allegation or allegations within the one year period.
58As referenced above, the applicant chose not to give evidence at the preliminary hearing on the issue of whether his delay in raising the allegations that pre-date the one year period prior to the filing of the Application was incurred in good faith. As a result, I have no evidentiary basis to support such a finding. Accordingly, the applicant's allegations against the WRPSB that pre-date the one year period prior to the filing of the Application are dismissed for delay.
Acclaim's request for removal as a party respondent
59Acclaim filed a Request for Order seeking its removal as a party respondent in this matter.
60There is no dispute that Acclaim is not the applicant's employer. Acclaim is a third-party ability management service provider that works with employers, insurance companies, government programs and other organizations to assist people with injuries, illnesses and disabilities to improve their quality of life and return to work in a timely, healthy manner.
61Acclaim provides disability management services to the WRPS pursuant to a Service Agreement between the parties which commenced on June 1, 2010. Acclaim's services to the WRPS include short-term disability claims adjudication and case management.
62Acclaim representatives work primarily with the WRPS's Human Resources Department, including the WRPS Return to Work Coordinator. Acclaim communicates with the disabled employee directly and with the employee's health care providers with consent. Acclaim does not share confidential medical details, such as diagnoses, with the WRPS.
63In general, in the adjudication process, an employee absent from work for five or more consecutive scheduled shifts submits a medical certificate to Acclaim. Based on the medical certificate and any further medical information obtained with the employee's consent from the employee's health care providers, Acclaim indicates to the employee and the employer whether there is medical support for the employee's absence from work. Where Acclaim determines there is insufficient objective medical evidence to support the employee's absence, the employee after being notified can appeal the decision to be reviewed by a more senior Acclaim staff member by providing additional information.
64Acclaim also deals with requests for workplace accommodation made by WRPS employees and determines whether there is sufficient medical evidence to support the accommodations requested. As Acclaim is not the employer, Acclaim is not responsible for implementing any workplace accommodations.
65The Service Agreement between Acclaim and the WRPS is in evidence before me. This Service Agreement provides that effective July 1, 2010, Acclaim shall work directly with WRPS staff who coordinate short-term disability claims and shall provide adjudication and case management services in respect of such claims.
66Also in evidence before me is a Letter of Understanding between the WRPSB and the WRPA dated March 24, 2010 which includes the following terms: that the WRPSB and the WRPA agree to support and endorse the use of Acclaim for the purpose of adjudication and case management for all absences due to illness or non-compensable injury of five working days or more; that Acclaim shall make all decisions regarding the fitness of WRPS members to perform their duties; and that the WRPSB and the WRPA agree to be bound by Acclaim's decision regarding the fitness of a WRPS member to perform their duties in relation to the utilization of sick bank credits and/or coverage under the CSLB, subject to the rights of the WRPSB and the WRPA to forward any grievance to arbitration in accordance with the grievance procedure in respect of any matter arising under the collective agreement, including the WRPSB's duty to accommodate and/or availability of appropriate modified work. Acclaim was not a party or signatory to this Letter of Understanding.
67In practice, based on the materials before me relating to the applicant, Acclaim was responsible for denying the requests for accommodation made by the applicant's doctor by letters dated February 22, 2011 and May 16, 2011 based upon a lack of objective medical documentation to support the requests. Acclaim was also responsible for recommending that the applicant participate in an IME, for scheduling IMEs, for suspending support for the applicant's absence from work due to his failure to attend two scheduled IMEs, and for continuing this suspension of support until the applicant had attended a third scheduled IME and Acclaim had received and reviewed the IME report. Acclaim representatives also engaged in communications with the applicant and his doctors and other health care providers by phone, e-mail and letter, which form the basis of the applicant's allegation of harassment against Acclaim.
68As stated above, there is no question that Acclaim is not the applicant's employer. That does not mean, however, that Acclaim through its own actions is not capable of violating the applicant's right to equal treatment without discrimination "with respect to employment" within the meaning of s. 5(1) of the Code. This Tribunal has held repeatedly that the term "with respect to employment" extends beyond what may traditionally be regarded as employer-employee relationships, and that a breach of s. 5(1) of the Code may arise between an employee and other persons who are not "employers" in the traditional sense. The issue in each case is whether there is a sufficient nexus or link to employment in the relationship between the parties: see Payne v. Otsuka Pharmaceuticals Co Ltd., 2001 CanLII 26231 (ON HRT); Sutton v. Jarvis Ryan Associates, 2010 HRTO 2421; Sutherland v. Bradstock, 2011 HRTO 619; Chaudhry v. Choice Taxi of Cornwall Inc., 2012 HRTO 391; Halliday v. Van Toen Innovations Incorporated, 2013 HRTO 583 and Ifrah v. National Income Protection Plan Inc., 2014 HRTO 1637.
69In the instant case, there is clearly a nexus or link to employment in the relationship between Acclaim and the applicant. Acclaim was responsible for adjudicating the applicant's requests for workplace accommodations, and determining what accommodations were supported by objective medical information. Acclaim was responsible for recommending and scheduling the IMEs, for determining that the applicant's absence from work was not supported due to his failure to attend the first two IMEs, and for continuing that lack of support until the applicant attended a third scheduled IME and Acclaim had received and reviewed the IME report, which had a direct impact on the applicant's inability to receive his employment sick leave benefits and benefits under the CSLB. In my view, given Acclaim's role under the Service Agreement, Acclaim's relationship with the applicant was inextricably linked to the applicant's employment with the WRPS, and provides a more than sufficient basis to conclude that Acclaim's actions at issue in this proceeding were "with respect to" the applicant's employment.
70Acclaim relies upon this Tribunal's decision in Ivanescu v. Credit Valley Hospital, 2012 HRTO 1352 ("Ivanescu") in support of its position that it should to be removed as a party respondent to this proceeding. In my view, the Ivanescu decision is entirely distinguishable on the facts of the instant case. In Ivanescu, the application was brought against the employer hospital as well as the employee's LTD insurer and Acclaim (which had supplied temporary employees to work in the hospital's occupational health department). The central allegation at issue in that proceeding was the failure to accommodate the employee's disability-related needs when she attempted to return to work, primarily on the basis of the requirement for her to work nights. This Tribunal quite properly and correctly found that the requirement for the employee to work nights was imposed by the employer hospital and not Manulife, that it was the employer that controlled the employee's hours of work and not Manulife, and that the duty to accommodate the employee's disability-related needs lies with the employer not Manulife (see para. 21).
71While the instant case does raise allegations as against the WRPSB as the applicant's employer arising from its alleged failure to properly accommodate his needs in terms of work assignments or potential return to work, the claims against Acclaim do not relate to workplace accommodations. Rather, the claims against Acclaim arise from Acclaim's role under the Service Agreement with the WRPSB to adjudicate the issues of the applicant's entitlement to sick leave benefits and/or access to the CSLB and of whether the requests for accommodation made by the applicant's doctor were supported by objective medical information. And pursuant to the Letter of Understanding, both the WRPSB and the WRPA agreed to be bound by Acclaim's decisions, subject to their grievance rights under the collective agreement.
72In the Ivanescu case, while the employer may have relied upon Manulife's assessment in the context of its consideration of the employee's LTD claim that the employee was capable of working night shifts, there is no indication from the Tribunal's decision that Manulife was contracted by the employer hospital to provide adjudicative services in the manner that Acclaim has been so contracted in the instant case.
73With regard to the removal of Acclaim as a party in the Ivanescu case, this was done on the basis that Acclaim as a corporate entity had no involvement in the accommodation process at the employer hospital, beyond providing the hospital with temporary employees who were entirely under the hospital's direction and control. In contrast, in the instant case, Acclaim as a corporate entity contracted with the WRPSB pursuant to the Service Agreement to provide adjudication services and, while its employees interacted with WRPS employees, there is no indication before me that the Acclaim employees involved in dealing with the applicant were under the WRPSB's direction and control.
74Acclaim also relies upon this Tribunal's decision in Illes v. The Manufacturers Life Insurance Company, 2014 HRTO 992 ("Illes"). This case too, in my view, is entirely distinguishable. In the Illes case, Manulife was the employee's LTD administrator. The allegation raised was that Manulife had conspired together with the employer to prevent him from returning to accommodated work. The Tribunal held that, as the LTD administrator, Manulife did not have the ability to do more than make recommendations and provide information to the employer, which had the duty to accommodate the employee's needs in the workplace: see para. 24. This in my view is entirely distinguishable from Acclaim's role under the Service Agreement, which was not merely to provide information and make recommendations, but to actually adjudicate issues such as the applicant's entitlement to sick leave and/or CSLB benefits and whether accommodation requests were supported by objective medical evidence.
75Whether or not the applicant in the instant case is able to prove that Acclaim discriminated against him because of race or disability or engaged in reprisal against him is a matter to be determined on the basis of evidence at the hearing on the merits in this matter.
76Acclaim's request to be removed as a party respondent is denied.
Material filed after preliminary hearing
77Following the preliminary hearing, the applicant filed certain additional information with the Tribunal. All respondents have objected to my consideration of this information. In my view, the information provided is not relevant to the preliminary issues to be determined, and so I have not considered it. The relevance of this information to any of the remaining issues in this proceeding will be determined at the hearing or as necessary.
Next steps
78Within 14 calendar days of the date of this Interim Decision, the applicant shall serve and file a document entitled "Schedule B to the Application" which contains only those paragraphs or allegations for which leave to amend the Application has been granted. In addition, I have framed the allegations against the respondents as set out at paras. 48 and 41(c) above as I understand them from the Application. If the applicant takes the position either that the issues as I have framed them have been improperly articulated or that there are issues raised in the Application that have not been included, then within 14 calendar days of the date of this Interim Decision the applicant shall articulate succinctly what those issues are and where they are raised in the Application.
79Within a further 14 calendar days, the respondents shall serve and file a document entitled "Schedule B to the Response of the [name of respondent]" setting out any response they may have to the amendments. In addition, within this time period, the respondents shall serve and file written submissions in response to any submissions made by the applicant regarding how the remaining issues in this proceeding have been framed.
80Within a further 7 calendar days, the applicant shall serve and file a document entitled "Schedule B to the Applicant's Reply to the WRPA Response" in which he replies to any response to the amendments filed by the WRPA, and a document entitled "Schedule C to the Applicant's Reply to the Responses by WRPSB and Acclaim" in which he replies to any response to the amendments filed by the WRPSB and/or Acclaim. With this same time period, the applicant shall make any written submissions in reply to any submissions by the respondents regarding how the remaining issues in this proceeding have been framed.
81Within a further 21 days, all parties shall make disclosure to each other of any additional documents in their possession that are arguably relevant to the amendments as granted or the responses or replies filed regarding those amendments.
82Given the nature of the allegations raised by the applicant and in particular his allegations about differential treatment with reference to specific individuals, I want any issues regarding disclosure to be raised in a timely manner so that they can be addressed by this Tribunal well in advance of the scheduled hearing. Accordingly, within 30 calendar days from the date for making additional disclosure as set out above, any party who believes that they have not received disclosure of all arguably relevant documents shall serve and file a Request for Order seeking such disclosure with full submissions in support of the Request.
83This matter will now be scheduled for a hearing on the merits, and the parties will receive a Notice of Hearing from the Tribunal in due course. The deadline for the parties to fulfil their pre-hearing obligations to file witness statements and the documents upon which they intend to rely will be addressed in the Notice of Hearing.
ORDER
84For all of the foregoing reasons, I hereby make the following order:
a. The applicant's request to amend his Application as against the WRPA is denied, with the exception of paras. 60, 73 and 74 of Schedule A to his Request for Order;
b. The applicant's request to amend his Application as against the WRPSB and Acclaim is denied, with the exception of the allegation as described in para. 25(a) above and all particulars relevant to this allegation and with the exception of paras. 86 to 88 of Schedule A.1 to his Request for Order;
c. Paragraphs 4 to 10 and the second sentence of para. 30 of Schedule A to the Application are struck as having already previously been raised and dealt with before the Ontario Human Rights Commission;
d. The allegation against the WRPA as set out in para. 41(a) above is dismissed for delay, and the allegation against the WRPA as set out in para. 41(b) above is dismissed as having no reasonable prospect of success;
e. The applicant's allegations against the WRPSB that pre-date the one year period prior to the filing of the Application are dismissed for delay;
f. Acclaim's request to be removed as a party respondent is denied; and,
g. The parties shall file materials and make further disclosure to each other in accordance with the timelines set out in paras. 78 to 82 above.
Dated at Toronto, this 11th day of December, 2015.
"Signed By"
Mark Hart
Vice-chair