Human Rights Tribunal of Ontario
BETWEEN:
Janice McNamara Applicant
-and-
Elementary Teachers’ Federation of Ontario Respondent
DECISION
Adjudicator: Geneviève Debané Date: February 25, 2015 Citation: 2015 HRTO 233 Indexed as: McNamara v. Elementary Teachers’ Federation of Ontario
APPEARANCES
Janice McNamara, Applicant Damien Buntsma, Counsel
Elementary Teachers’ Federation of Ontario, Respondent Kate Hughes, Counsel
1This Application alleges discrimination with respect to membership because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).
2On June 9, 2014, the Tribunal issued a Case Assessment Direction which allowed the respondent’s Request and directed that a summary hearing would be held to determine whether all or part of the Application should be dismissed on the basis that it had no reasonable prospect of success.
3All of the parties, through their respective counsel, participated at the Summary Hearing.
Background
4The respondent, the Elementary Teachers’ Federation of Ontario, is the applicant’s bargaining agent. On December 18, 2012, the respondent organized a day of protest, which would involve some picketing activities and a full withdrawal of services.
5On December 14, 2012, the applicant filled out a Request for Special Consideration/Exemption from Picket Duties (the “Request Form”). The Request Form provides a mechanism by which employees can be excused from picketing duties for either religious and/or medical reasons, and requires an employee to provide documentation to support the request.
6The applicant indicated the following in the Request Form:
“Exemption-I have severe osteo-rheumatoid arthritis-scheduled for surgery in January 2013. Cold and dampness are problematic.”
7The applicant indicated in the Request Form that she was being accommodated by her employer and that with respect to medical documentation that “you have some on file for me”.
8On Friday December 14, 2012, the applicant received an email from one of the respondent’s employees asking her to provide her medical documentation in support of her request as soon as possible. She was told to present herself at the head office at noon on December 18, 2012, so that she could be assigned alternate duties.
9On December 17, 2012, the applicant responded to the email asking what was meant by “medical documentation.” The employee advised that she needed a doctor’s note. The applicant replied that “the local has an abilities form on file for me from Feb. 2012. Is that sufficient?”
10The employee responded “That form is specific to school. You should provide medical that states that you are unable to participate in picket duty.”
11On December 18, 2012, the applicant did not participate in picket duty. The applicant also did not attend the head office for alternate duties. Instead, the applicant attended at her school and worked.
12On December 19, 2012, the applicant was contacted by the respondent to inquire as to her whereabouts on December 18, 2012.
13On December 20, 2012, the applicant sent to the respondent an email, explaining her position with respect to the events of December 18, 2012. The applicant advised that she called her doctor on December 17, 2012 and she was advised that it would cost fifty dollars for her to obtain a medical certificate stating that she could not picket. The applicant thought that she should not have to pay for this medical certificate. The applicant states that she did not share her concern about the cost of the medical certificate with the respondent. The applicant explained that:
“I felt I had to “be” somewhere on the 18th. I knew I couldn’t picket; I didn’t feel like I could go to the [Peel Elementary Teachers’ Local office] without promising a medical note; I didn’t think I should stay home; so I picked the only other place which I felt that I could go to which was to school…even though I knew it would not be looked on favorably at all.”
14The respondent then initiated a complaint against the applicant for breaching the Code of Conduct of its Constitution for reporting to work on a day that the respondent had ordered a full withdrawal of services. Eventually, the complaint was upheld on June 12, 2013 and the respondent imposed some sanctions on the applicant.
15The applicant filed the Application on March 17, 2014.
The Summary Hearing
16The applicant’s position at the summary hearing was that the respondent had the right to ask for medical documentation to support a picket exemption request. However, in this case the applicant is of the view that the respondent already had medical documentation, (the Abilities Form that was completed in February 2012) to support her request that she could not picket. She asserts that requiring her to provide additional medical documentation is discriminatory. She also asserts that the respondent could have obtained her existing Abilities Form to confirm that she could not picket.
17The applicant also asserts that the disciplinary process that was initiated against her was discriminatory.
18However, having reviewed the Abilities Form, I am of the view that it does not support the applicant’s request to be exempt from picketing for the reasons that she indicated in the Request Form. The applicant asserts in the Request Form that “cold and dampness are problematic”. However, the Abilities Form contains no restrictions with respect to environmental exposure, despite the fact that there is a specific question addressing this type of restriction. The Abilities Form also does not mention any surgical procedures occurring in January 2013.
19The parties filed submissions and documents in advance of the summary hearing. This included a letter that the applicant included in her materials from the applicant’s doctor dated December 19, 2012, in which the doctor advised that the applicant was having total knee replacement surgery on January 23, 2013, and that she would need a recovery time of 6 to 12 weeks. This is a letter that was not presented to the respondent in December 2012 to support the applicant’s request to be excused from picket duties. The applicant’s counsel did not know why the applicant’s picketing restriction was not included in the letter. The applicant’s counsel also did not know why the applicant had not sought to rely on this letter in support of her request for picketing exemption. I note that it is the applicant’s assertion that it was unfair for her to have to take a day off work to obtain medical documentation, however, clearly such a document existed on December 19, 2012.
20Having considered the matter, I am of the view that the Application, with respect to this allegation, has no reasonable prospect of success. Having reviewed the Abilities Form, I am of the view that it does not support the applicant’s belief that it was sufficient to establish that she could not picket for the reasons that she indicated in the Request Form. Further, the applicant could have provided the December 19, 2012 letter to the respondent in support of her request to be excused from picketing.
21The applicant also asserts that it was discriminatory for the respondent to discipline her because she attended work on December 18, 2012. Having considered the matter I find that the applicant’s decision to attend work on December 18, 2012, is unrelated to her disability, but was the applicant’s personal choice. The applicant had a number of options available to her on December 18, 2012, including that she could have attended the respondent’s head office to be assigned alternate duties and explained that her doctor would charge her $50 dollars for a medical note. The applicant herself notes a number of these options in her email dated December 20, 2012 to the respondent:
As said above, hindsight is perfect vision. Upon further reflection, I probably could and should have shown up for my duties at the [Peel Elementary Teachers’ Local] office, done my three hours and then mentioned that I would not be providing a new note. Of course, I feel [Peel Elementary Teachers’ Local] would not have approved my $50.00 dollar strike pay, which curiously is the cost of my doctor’s letter. Another option I guess would have been to chauffeur colleagues back and forth for washroom breaks and coffee breaks in the warmth of my car, since I indicated that dampness and cold increase the pain in my arthritis. Perhaps that would have been acceptable picket duty.
22As such, I find that the applicant has not proposed any evidence to support her assertion that the disciplinary procedures initiated against her by the respondent were discriminatory and that they also have no reasonable prospect of success.
23In light of my findings that the Application has no reasonable prospect of success, I need not address the respondent’s argument that some of the allegations are untimely.
Order
24The Application is dismissed.
Dated at Toronto, this 25th day of February, 2015.
“Signed by”
Geneviève Debané Vice-chair