Hum v. Alma Mater Society of Queen's University Incorporated, 2015 HRTO 300

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Sau-Ling Hum Applicant

-and-

Alma Mater Society of Queen’s University Incorporated Respondent

DECISION

Adjudicator: Brian Eyolfson Date: March 11, 2015 Citation: 2015 HRTO 300 Indexed as: Hum v. Alma Mater Society of Queen’s University Incorporated

APPEARANCES

Sau-Ling Hum, Applicant Self-represented

Alma Mater Society of Queen’s University Incorporated, Respondent J. Michael Hickey, Counsel

Introduction

1This Application was filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on March 22, 2013, and alleges discrimination in the area of employment on the basis of disability.

2The applicant was employed by the respondent, Alma Mater Society of Queen’s University Incorporated (the “AMS”), as Director of the Peer Support Centre (the “PSC”), pursuant to a one-year contract commencing May 1, 2011. Her employment was terminated on March 21, 2012.

The applicant’s allegations

3In her Application, the applicant states that she has a “visible mobility impairment” and “chronic medical conditions”.

4She alleges that, at the beginning of the 2011 spring term, she requested taxi chits from her supervisor, and she was provided with 5 or 6 taxi chits. When she later requested taxi chits, at the beginning of the fall term, she was only given 2 chits. Before the winter term began, she asked her supervisor for more taxi chits, stressing that her mobility would be seriously compromised during the winter. She was again provided with only 2 chits. When her volunteer managers asked for taxi chits near the beginning of April 2012, after her employment was terminated, they were provided with a minimum of 8 taxi chits. The applicant alleges that the PSC was open until 1:00 a.m., and she often worked late, after the PSC was closed. There were numerous times when she was not able to return home safely and had to sleep at the PSC.

5The applicant alleges that, on May 24, 2011, she met with the respondent’s IT Manager, and requested remote computer access. She specifically stated that it was an issue of accommodation. The IT Manager said that he would work on providing remote access but he never did.

6The applicant alleges that she met with 2 of her supervisors on October 28, 2011. Their primary concern was that the volunteer training taking place that week (25 hours) was too much. At no point did the applicant’s supervisors address her hours of work that week (minimum of 70 hours) and what could be done to help her.

7The applicant alleges that there was a pattern of unhelpfulness that created a poisoned work environment for her. She alleges, in particular, that the respondent failed to take her health concerns, and her general well-being, into consideration.

8The applicant’s employment was terminated by letter on March 21, 2012. She alleges that, although the respondent’s policy with respect to termination requires both written notification and a meeting, the respondent did not meet with her. She told her supervisor that she was too ill to attend a scheduled meeting, but no consideration was given regarding her health.

The respondent’s Response

9In its Response to the Application, the respondent submits that taxi chits were provided to the applicant, and other employees of the PSC, as requested. Specifically, the applicant’s supervisor provided taxi chits to the applicant whenever she requested them, and he never denied her requests for chits. If the applicant needed more taxi chits, all she had to do was make a request by phone or email. By email dated October 12, 2011, the applicant requested taxi chits, and her supervisor responded the same day advising that he would leave chits for her that day. The applicant never complained that the respondent was not providing enough taxi chits.

10With respect to remote computer access, the respondent submits that any requests for equipment should have been made to her supervisor. The applicant never asked her supervisor for remote computer access, and, in her numerous communications with her supervisor, she never mentioned a failure by anyone to provide her with remote access. The respondent submits that it made every effort to accommodate the applicant’s needs and requests, including providing her with special sound-blocking headphones, and offering to assist her with her move to an apartment in November 2011.

11With respect to the termination of the applicant’s employment, the respondent submits that several attempts to meet with the applicant were made prior to delivering a termination of employment letter to her. The respondent submits that the applicant failed to respond to the respondent’s requests, and failed to attend a scheduled meeting. The respondent’s Human Resources Officer was made available to the applicant to discuss any questions or concerns she may have had regarding the termination process.

12The respondent submits that the applicant was never subjected to any acts of discrimination, and that there are no grounds for the applicant’s claim of discrimination.

Delay

13In the Application, the applicant indicated that the date of the last event to which the Application relates is March 21, 2012, and that she was submitting her Application exactly one year from that date. She also stated in her Application that she had been ill for much of the past year, and that she was concerned because she has “dial-up” and the slowness of her connection could affect the delivery time of the Application.

14The Tribunal received the Application by email at 5:17 p.m. on March 21, 2013. Rule 1.19 of the Tribunal’s Rules of Procedure states that documents received by fax or email after 5:00 p.m. will be deemed to have been received on the next business day. As such, the Application was deemed filed on March 22, 2013.

15In its Response to the Application, the respondent raised the issue of delay, and requested that the Application be dismissed on the basis that it was filed past the one-year limitation period in s. 34 of the Code.

16In a Reply, the applicant referred to having ill health and limitations resulting from her disabilities. She submitted that she did everything that she could possibly do within the confines of her limitations to file her Application on time, and that it can take well over an hour to send a file as large as the Application.

17By Case Assessment Direction dated April 2, 2014, the Tribunal proposed that the issue of delay be addressed at the hearing, and the Tribunal heard submissions from the parties on the issue of delay at the hearing.

18In light of my findings below with respect to the merits of the Application, it is not necessary for me to address the issue of delay in this matter.

EVIDENCE

19The applicant gave evidence at the hearing, and called Lucielle Zuiker, Training Manager, PSC, 2011-2012, as a witness. The following witnesses testified on behalf of the respondent: Lindsay Reynolds, current Director, PSC; Thomas (T.K.) Pritchard, Social Issues Commissioner, AMS, 2011-2012, and current Vice-President (University Affairs), AMS; Chris Whelan, former Information Technology (“IT”) Manager, AMS; and, Kieran Slobodin, Vice-President (University Affairs), AMS, 2011-2012. Evidence relevant to the Tribunal’s determination of the allegations of discrimination is summarized below.

ANALYSIS AND DECISION

Assessment of Credibility

20To the extent that this Decision turns on my assessment of the credibility of the applicant and the parties’ witnesses, I am guided by the principles set out by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 DLR 354, at paras. 356-357:

…Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he has seen and heard, as well as other factors, combine to produce what is called credibility.

The credibility of interested witnesses, particularly in cases of conflict of evidence cannot be gauged solely by the test of whether the personal demeanor of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of the witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions (…) Again, a witness may testify to what he sincerely believes to be true, but he may be quite honestly mistaken.

21I am also guided by factors considered by the Tribunal in Cugliari v. Clubine and Brunet, 2006 HRTO 7 at para. 26: the motives of the witnesses; the relationship of the witnesses to the parties; the internal consistency of their evidence; inconsistencies and contradictions in relation to other witnesses’ evidence; and, observations as to the manner in which the witnesses gave their evidence.

22I am also mindful of the Ontario Court of Appeal’s comments in R. v. Morrissey, (1995), 1995 CanLII 3498 (ON CA), 97 CCC (3d) 193 at p. 205 with respect to assessing the credibility and reliability of testimonial evidence:

Testimonial evidence can raise veracity and accuracy concerns. The former relate to the witness's sincerity, that is his or her willingness to speak the truth as the witness believes it to be. The latter concerns relate to the actual accuracy of the witness's testimony. The accuracy of a witness's testimony involves considerations of the witness's ability to accurately observe, recall and recount the events in issue. When one is concerned with a witness's veracity, one speaks of the witness's credibility. When one is concerned with the accuracy of a witness's testimony, one speaks of the reliability of that testimony. Obviously a witness whose evidence on a point is not credible cannot give reliable evidence on that point. The evidence of a credible, that is honest witness, may, however, still be unreliable.

Does the applicant have a disability within the meaning of the [Code](https://www.canlii.org/en/on/laws/stat/rso-1990-c-h19/latest/rso-1990-c-h19.html)?

23In her Application, the applicant asserts that she has a visible mobility impairment and chronic medical conditions.

24At the hearing the applicant testified and submitted that she has both a visible disability and a sleep disorder. She referred to a letter dated July 8, 2013 from her family doctor which states that the applicant has a significant medical condition which impairs her ability to function well earlier in the day. A second letter from her family doctor dated August 9, 2013, states that the applicant is struggling with a number of significant chronic medical problems, and that these difficulties were present at the time of the applicant’s difficulties at the AMS in 2011. A third letter, dated February 20, 2014, and signed by a psychiatrist, states that the applicant has disabilities, and that she is dealing with a complex set of interrelated chronic medical conditions, including significant sleep disorders. These 3 letters, along with numerous other documents, were made exhibits at the hearing on agreement of the parties.

25The respondent acknowledges and does not dispute that the applicant has a physical disability, and that she uses two canes. The respondent submits, however, that it was never aware that the applicant had any other disability, and, in particular, the respondent did not know that the applicant had a sleep disorder.

26“Disability” is defined in s. 10 of the Code, in part, as: “any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness…”; “a condition of mental impairment”; and, “a mental disorder”.

27I am satisfied that the applicant has a mobility impairment that constitutes a disability within the meaning of the Code. Although it is not entirely clear based on the evidence, it appears that the applicant’s sleep disorder, or disorders, may also constitute a disability within the meaning of the Code. In any event, based on the evidence, it appears that the respondent was only aware that the applicant had a mobility impairment, and was not aware that she had a sleep disorder or any other disability. The applicant also acknowledged at the hearing that the respondent was not aware of her “other chronic medical conditions”, and questioned why the respondent should be, referring to having some privacy regarding her health. In the circumstances, it is not necessary to determine if the applicant’s sleep disorder falls within the definition of disability within the meaning of the Code.

Was the applicant subjected to discrimination in employment on the basis of disability?

The parties’ positions

28At the hearing, the applicant submitted that, as a person with a visible disability, the respondent discriminated against her with respect to her health and safety, and her general well-being. She referred, in particular, to a limited provision of taxi chits, lack of remote computer access, and a poisoned work environment in terms of hostility towards her and her services at the PSC. With respect to a poisoned environment, the applicant referred to the existence of numerous “emails” regarding hiring, training, keys, a referendum and other matters that she alleges created a hostile work environment.

29With respect to the termination of her employment, the applicant submitted that the respondent disregarded her health and her ability to attend meetings. She clarified that she did not think that her employment was terminated because of disability, but that the manner in which the termination of her employment was carried out was discriminatory. She confirmed that she was not asserting that the termination of her employment was discriminatory, in and of itself.

30The respondent submitted that it made efforts to accommodate the applicant’s disability. In particular, the respondent provided the applicant with taxi chits and remote email access. It also made efforts to schedule meetings with her when her employment was terminated.

31The respondent also submitted that the applicant had other issues with the respondent, but that those issues are not covered by the Code, such as: frustration with AMS bureaucracy; a dispute about the prominence of the PSC in an AMS newsletter; an error with the PSC logo; her reaction to receiving a written warning; a dispute regarding the training of volunteers; frustration with efforts regarding a referendum on a 1$ fee; and, disappointment in not being able to extend her contract with increases in hours and salary.

Taxi chits

32To begin with, it appears from the evidence that the applicant used taxi chits primarily for transportation between home and work. While the respondent takes the position that it accommodated the applicant by providing her with taxi chits, based on the evidence and submissions before me, it is not clear that the Code would have required the respondent to essentially pay for the applicant’s transportation between home and work. In any event, for the reasons that follow, I find that the applicant has not established that she was subjected to discrimination in relation to the provision of taxi chits.

33At the hearing, the applicant reviewed the narrative in her Application, confirmed that it was correct, and adopted it as her evidence.

34With respect to taxi chits, the applicant also testified that she requested chits at the beginning of the spring term, around the time she commenced employment with the AMS, and she was given 6 chits. At the beginning of the fall term, she was provided with only 2 chits. She testified that her supervisor, Mr. Pritchard, said that they were limited to 2 chits.

35The applicant testified that when she asked for chits for the winter term, she stressed that she would have additional mobility problems, or increased problems getting around. Again, 2 chits were left for her.

36The applicant testified that, with only 2 chits at a time, she was pretty much limited to 1 chit, because she always had to have 1 chit on her in case of an emergency. So, if she used a chit right away, she would always have to be asking for more chits. She explained that her job was busy and stressful, and she did not really feel that it was something that she could broach with her supervisor, especially because it was a matter of her health. She also testified that she slept at the PSC a minimum of about 20 times, because she did not feel she could make it home safely.

37In an email to Mr. Pritchard, dated October 12, 2011, the applicant indicates that she only has 1 taxi chit left, and asks Mr. Pritchard if he could provide a few more. She states in the email that she is only inclined to use chits when she has to get somewhere for a very specific time, and she cannot do that quickly on her own. She asks if he can leave them for her at the “Front Desk”. In an email response approximately 10 minutes later, Mr. Pritchard indicates that he will put taxi chits in an envelope at the front desk that day.

38In an email dated March 16, 2012, the applicant states that she is using her last taxi chit and asks another individual if she could ask for more chits for her while at the AMS. By email later that day, the individual states that she could not get chits for the applicant, because the applicant needs to go to the AMS and sign for them.

39The applicant testified that she did not have the time to keep making requests for taxi chits, and to keep picking them up at the AMS office. She described the respondent’s actions as cruel, vindictive and petty.

40In cross-examination, the applicant did not dispute that the PSC and the AMS are in the same building, and agreed that they were possibly 50 yards apart. She also agreed, having regard to records disclosed by the respondent, that she used 5 taxi chits between May 20 and September 10, 2011. After October 2011, she agreed that she used 2 chits in February 2012, and thought that she might have used a third chit. She explained that when she referred to using her last chit in her March 16, 2012 email, she still had another chit as she always kept one for emergencies. She also testified that she did not attend the AMS to pick up more chits after her March 16, 2012 email, and that she used the last chit that she had on March 22, 2012, the day after her employment was terminated, to get home after clearing out her possessions at the PSC.

41Mr. Pritchard testified that the applicant reported to him. He was aware that she has a disability and uses two canes, but he was not aware that she has a sleep disorder. He also testified that the applicant was ill from time to time, but he did not know the extent of her illness, but just that she was unwell or sick and could not come in. He was also aware that she rode a bike from time to time.

42With respect to taxi chits, Mr. Pritchard testified that if students have something that they need to get to by taxi they can speak to a supervisor about it and the supervisor can give taxi chits if needed. He agreed that the applicant asked him for taxi chits from time to time. He testified that the only reason she gave for why she needed chits was if she had to get to campus quickly because of an emergency, in relation to her first request for chits in the spring of 2011.

43Mr. Pritchard testified that he gave the applicant more taxi chits in the spring, because he had more. In cross-examination, he testified that he did not remember the detail of the conversation he had with the applicant in May 2011. He testified that he probably gave the applicant the chits that he had in his office at the time.

44Mr. Pritchard testified that when the applicant requested a few more taxi chits in her October 12, 2011 email to him, he gave her a few more, and left her 3 chits. He explained that he usually provides them in person, but he left the chits at the front desk of the AMS. Mr. Pritchard denied that there was any discussion with the applicant about limiting the number of chits. He also testified that he did not give the applicant more chits in March 2012, and that he had no further discussion with her regarding taxi chits.

45Mr. Pritchard testified that the applicant never told him that she needed more chits, or that she did not get enough chits, and that if she had requested more, he would have been happy to give them to her. In cross-examination, he testified that when she asked for a few chits in the fall, he gave her a few.

46Mr. Slobodin, who Mr. Pritchard reported to in 2011-2012, testified he was aware that the applicant walked with two canes from time to time. He was not aware that she had a sleep disorder. He testified that he had no direct communication with the applicant about taxi chits.

47The applicant also referred to an email dated March 28, 2012, from the PSC’s Marketing & Outreach Coordinator to Mr. Pritchard, which states as follows:

Is it possible to provide taxi chits for psc counsellors going to and from west campus for our satellite centre?

I’d need at least 8….. (there are 4 shifts in total. so, there and back. We can ask the counsellors to meet and go together).

In an email response dated March 30, 2012, Mr. Pritchard indicates that he put the taxi chits in an envelope in a drawer. This occurred subsequent to the applicant’s employment being terminated on March 21, 2012.

48The applicant submitted that the PSC’s able-bodied volunteers got more taxi chits than her, and she has a disability. She agreed in cross-examination that she never asked for 8 chits, or more than “a few”. In re-examination, she referred to an email dated June 12, 2011, wherein she states that she made sure to get “a few” taxi chits at the beginning of May. She testified that she was referring to 6 chits.

49With respect to the March 28, 2012 email, Mr. Pritchard testified that there was a special event on “west campus”, with a satellite peer support centre, and some volunteers were sent there. He was told how many times they needed to go back and forth, and he provided the PSC with taxi chits for that day, for more than one counsellor. He testified that he never received a similar request from the applicant for a specific number of chits.

50In cross-examination, Mr. Pritchard testified that taxi chits are usually given out for reasons including going to events, going home at night, going to the train station and anything that is work related. With respect to safety and going home at night, Mr. Pritchard testified that he was unaware that the applicant was at the PSC until 1:00 a.m., but that “Walkhome” was open until 2:00 a.m. and could walk the applicant and the PSC volunteers home. He also testified that people could try to walk each other home, or take a taxi, if they could not walk each other home. He testified that if staff do not want to use the Walkhome service, they should let the respondent know. He also testified that it was not brought to his attention that the applicant was staying significantly late, and that the applicant never brought it up. He also testified that the applicant never advised him that it was necessary for her to sleep at the PSC, and, in cross-examination, the applicant agreed that she never told Mr. Pritchard that she had to sleep at the PSC.

51There does not appear to be any dispute that the applicant requested taxi chits in the spring of 2011 and Mr. Pritchard gave her 6 chits. By email to Mr. Pritchard, dated October 12, 2011, the applicant asked if Mr. Pritchard could provide a few more chits. The email correspondence indicates that Mr. Pritchard agreed with the applicant’s request to leave the chits at the “front desk” and he testified that he did.

52While Mr. Pritchard testified that he left 3 chits for the applicant, the applicant testified that he left her 2 chits. She also testified that Mr. Pritchard said that they were limited to 2 chits. Mr. Pritchard, on the other hand, denied that there was any discussion with the applicant about limiting the number of chits. In cross-examination, he confirmed that he provided the applicant with 3 chits, and denied that there were only 2 chits. He also denied that he had a conversation with the applicant when she picked up the chits.

53The applicant’s request for a few more chits in October 2011 was made and responded to by email. There does not appear to be any dispute that Mr. Pritchard left the chits for the applicant at the front desk of the AMS, as she requested. In the circumstances, I prefer the evidence of Mr. Pritchard that there was no conversation about the number of chits. The applicant did not explain how or when any such conversation took place, and it is clear that her request was made and responded to by email, and that Mr. Pritchard left the chits for her at the front desk.

54The applicant also testified that she asked for chits for the winter term, and stressed that she would have additional mobility problems, or increased problems getting around. She testified that, again, 2 chits were left for her. Mr. Pritchard testified that he did not give the applicant more chits in March 2012, and that he had no further discussion with her regarding taxi chits. In cross-examination, he clarified that he did not recall the applicant asking him for chits, in person, in the winter term or close to the winter term. He only recalled responding to her October 2011 email and providing her with chits then.

55Having carefully considered all of the evidence, I prefer the evidence of Mr. Pritchard that the applicant did not ask him for more chits in the winter term, and that he had no further conversation with the applicant about chits after providing her with chits in October 2011. The respondent provided documentation indicating that an extensive search and review of AMS taxi chits was conducted for the period of the applicant’s employment, and that a total of 9 chits for the applicant’s transportation were located. This number is consistent with Mr. Pritchard providing the applicant with 6 chits in the spring of 2011, followed by 3 chits in October 2011. The applicant did not dispute the respondent’s records, but testified that she thought that she might have used an additional chit in February 2012.

56I also note that the applicant testified that she asked for chits for the winter term, and stressed that she would have additional mobility problems, or increased problems getting around, and that, again, 2 chits were left for her. While the applicant did not explain how she asked for chits for the winter term, if chits were “left” for her, this suggests that she may not have requested more chits in person. Mr. Pritchard also testified in cross-examination that, at the time the respondent was trying to terminate the applicant’s employment, he had not seen the applicant in months. The parties also provided copies of considerable email correspondence, and it appears that the applicant and Mr. Pritchard communicated primarily by email at the time; however, there is no email in relation to a further request for chits for the winter term. While the applicant does refer to “winter and increased mobility problems” in an email to Mr. Pritchard dated February 10, 2012, the email has nothing to do with taxi chits, and concerns the applicant’s availability for a meeting.

57In any event, even if the applicant did stress to Mr. Pritchard that she would have additional mobility problems, or increased problems getting around, and he left her 2 chits, I do not find that this would amount to discrimination contrary to the Code in the circumstances.

58The applicant alleges that the respondent denied necessary accommodation, and did not meet her disability-related needs. It is clear, however, that a person seeking accommodation has a duty to make his or her Code-related needs known in order to trigger the duty to accommodate the person’s needs up to the point of undue hardship. See, for example, Huseynov v. Nimigan Mihailovich Reporting, 2012 HRTO 807 at paras. 40-41, MacDonald v. Cornwall Public Library, 2011 HRTO 1323; Simpson v. Commissionaires (Great Lakes), 2009 HRTO 1362; and, Central Okanagan School District No. 23 v. Renaud, 1992 CanLII 81 (SCC), [1992] 2 SCR 970. In the present case, there is no evidence that the applicant communicated to the respondent that she had a disability-related need that was not being met by the number of chits that were provided to her at any time. It also appears that she only used taxi chits approximately once per month on average. In the circumstances, I find that if the applicant had a disability-related need for more taxi chits, the respondent would not have reasonably been aware.

59In her October 12, 2011, email to Mr. Pritchard, the applicant states that she is only inclined to use chits when she has to get somewhere for a very specific time, and she cannot do that quickly on her own. She asks for “a few” more chits. She also testified that she did not have the time to keep making requests for taxi chits, and to keep picking them up at the AMS office, but there is no indication that she ever raised this with the respondent.

60Mr. Pritchard testified that the applicant never told him that she needed more chits, or that she did not get enough chits, and that, if she had requested more, he would have been happy to give them to her. He also testified that he was unaware that the applicant was at the PSC until 1:00 a.m., and that the applicant never brought to his attention that she was staying significantly late. The applicant did not dispute Mr. Pritchard’s evidence. She testified that she did not really feel that it was something that she could broach with Mr. Pritchard, especially because it was a matter of her health. She questioned why she would complain about her health and safety to people who ignore her and are untrustworthy. In my view, it is not clear why the applicant did not ask to be provided with more taxi chits if she felt that the respondent was not providing her with an adequate number of chits to meet her needs.

61I also do not accept the applicant’s submission that she was subjected to discrimination in relation to the PSC’s Marketing & Outreach Coordinator’s March 28, 2012 request for taxi chits. That request was for “at least 8” chits in relation to 4 different shifts of counsellors making return trips by taxi. I note that the applicant agreed in cross-examination that she never asked for 8 chits, or for more than “a few”.

62Having considered all of the evidence, the allegation that the applicant was subjected to discrimination with respect to the provision of taxi chits is dismissed.

Remote computer access

63On May 21, 2011, the applicant emailed the AMS’s IT Manager, Mr. Whelan, and asked if they could meet. In her email, the applicant states that she has a number of IT concerns, and that the most pressing is to get necessary software on the PSC computer system. She states that, in particular, they need “Photoshop” as soon as possible.

64The applicant testified that she met with Mr. Whelan on May 24, 2011, and requested remote computer access. Mr. Whelan said that perhaps a link could be set up so that the applicant could access files on the computer system. In cross-examination, she added that Mr. Whelan said that it would be difficult to do, but that there may be a way that the applicant could access the actual computer system. The applicant testified that she never really got a response back in terms of computer access, and she did not pursue the matter.

65In an email to Mr. Whelan dated July 6, 2011, the applicant states, among other things, that she is following up on an earlier question about PSC email. She asks why the PSC computer uses “Office Outlook” and not “Office Express”, and whether Office Express is compatible with AMS email. She explains that she has Outlook Express, and not Office Outlook, on her home computer. She states that, come winter, it will become critical for her to have access on her home computer.

66At some point, Mr. Whelan responds to the applicant by email and explains that when she is at home she can log onto her email using Outlook “web access” and refers her to a link on an AMS webpage.

67In a further email to Mr. Whelan dated July 8, 2011, the applicant states that she already does this but it is not sufficient for what she needs to do because she has “dial-up” and some of the “monster” size attachments take forever to download. She also states that if she can configure a mail program to download email, she just needs to leave her computer on and let it download for as long as it needs to. She explains that then, all the attachments are at her disposal on her home computer for whenever she needs them. She asks again if Outlook Express is compatible with AMS email, and, if not, if there is a way for her to put Office Outlook on her home computer.

68In an email to the applicant dated July 13, 2011, Mr. Whelan confirms that Outlook Express is not compatible to work from outside the AMS network, and that Office Outlook cannot be configured to work on her home computer. He explains that the purpose of the web access is to give her access when she is not at work and that it will be upgraded soon, if not already, to serve her better.

69At some point, Mr. Whelan advised the applicant that it was his understanding that the applicant’s office computer would be replaced with a new one. In an email to Mr. Whelan dated August 18, 2011, the applicant asks if there is a time frame as to when it will happen.

70Mr. Whelan confirmed that he was the AMS’s IT Manager when the applicant was the Director of the PSC. He met with the applicant. He testified that, with respect to IT concerns, the applicant expressed the need for Photoshop and other things. She also had a slow computer, so they created a plan to replace it with a faster one in her office.

71With respect to advising the applicant that she could log onto her email at home using web access, Mr. Whelan explained that everyone with an AMS account could access their email through a link. He testified that, for security reasons, Outlook was not allowed to be used at home, because confidentiality could be compromised.

72Mr. Whelan testified that the applicant said that downloading was too slow at home. He testified that if the applicant had “high speed”, instead of dial-up, downloading would have happened faster and solved the problem.

73Mr. Whelan testified that after he emailed the applicant on July 13, 2011, he could not recall any more inquiries from, or conversations with, the applicant about remote computer access.

74In cross-examination, Mr. Whelan testified that he told the applicant that there was a possibility of remote access, and that maybe “VPN” could be used, but that it is not as secure. He testified that a VPN connection would have to be established through the University, and the University advised at the time that it was not something they should use. Mr. Whelan testified that he did not tell the applicant that, but he informed Mr. Slobodin who said that he would take care of it.

75Mr. Slobodin testified that, as Vice-President (University Affairs), he oversaw the IT office. Mr. Whelan informed him that a request for remote computer access had been made. He was also informed that they were unable to provide remote computer access because of access security concerns. Mr. Slobodin testified that he never informed the applicant of that, but he believed that Mr. Whelan did. He explained that the request was made through the IT office, and that it would have been responded to by Mr. Whelan.

76In cross-examination, Mr. Slobodin explained that all AMS employees can access Outlook email, whereas VPN would give greater access to computer files and internal networks. He explained that because of security issues, however, external access is not provided to employees, and that VPN opens up an unsecure access point.

77He also testified that he would have told Mr. Whelan to tell the applicant what their response was regarding remote access, that they could not provide remote access to computer files, to explain why and that the applicant could log on through Outlook. He testified that, at the time, he would have asked Mr. Whelan to make sure he followed up, and Mr. Whelan did not bring it up again so he assumed that he followed up. He also testified that he did not hear from the applicant.

78Mr. Pritchard testified that he was not aware that the applicant had requested remote computer access, and that all AMS employees can access their email from any site with the online web application. He also testified that the applicant never told him that she was having difficulties with her home computer.

79Having carefully considered the evidence, I find that the applicant has not established that she was subjected to discrimination in relation to computer access. To begin with, I am not satisfied that the applicant has established that she had an actual disability-related need for remote computer access. For example, there is no evidence that the applicant ever raised with anybody who supervised her that she had a disability-related need to do PSC work at home on her computer.

80I note that the applicant alleges in the narrative in her Application, which she adopted as her evidence, that remote computer access was especially important for the winter term, as her health and mobility worsen during this time. She also alleges that when she met with Mr. Whalen on May 24, 2011, and requested remote computer access, she stated that it was an issue of accommodation. When she gave further evidence at the hearing about her May 24, 2011 meeting with Mr. Whalen, however, the applicant simply testified that she requested remote computer access, it was discussed as a possibility, and she emailed Mr. Whalen about computer access at least once.

81It appears, however, from the above-referenced email correspondence between the applicant and Mr. Whelan, after she met with him, that the applicant’s concern was with accessing PSC email, and attachments, from home. She states that it will be critical for her to have access on her home computer in winter. In a second email, she acknowledges that she does have web access to her PSC email at home, but indicates that there is a problem with the time it takes to download very large attachments because she has dial-up.

82In cross-examination, the applicant explained that she wanted to have all her files in one place on the PSC computer and work from that. She agreed, however, that she did not explain this to Mr. Whelan, and that she only expressed speed as a concern with dial-up at home. She also agreed that there were no other communications with Mr. Whelan about remote access, and testified that she did not have time to address the issue of computer access. At the hearing, she stated that she let it “drop”.

83In the circumstances, I am not satisfied that the applicant had an actual disability-related need for remote computer access. She had remote access to her email and attachments, and only downloading very large attachments was problematic because of the amount of time it took in light of the applicant having dial-up at home. She did not follow-up with Mr. Whelan when she did not hear back from him regarding possible VPN access, and there is no evidence that she ever raised the issue of remote computer access with anyone with the respondent again. While it may very well have been more convenient for the applicant to have greater computer access from home, in my view the applicant has not established that it was a disability-related need.

84Even if greater remote computer access was a disability-related need for the applicant, it appears from the evidence that it was only discussed once with Mr. Whelan, as a possibility, when they met on May 24, 2011. As discussed above, a person seeking accommodation has a duty to make his or her Code-related needs known. In my view, if the applicant had an actual disability-related need for greater remote computer access, it was insufficient for the applicant to not follow-up with Mr. Whelan, or anyone else with the respondent, when she did not hear back from Mr. Whelan after greater remote access was discussed once as a possibility.

85With respect to the applicant not hearing back from Mr. Whelan about the possibility of greater remote computer access, it appears from the evidence that there was either a miscommunication between Mr. Whelan and Mr. Slobodin about getting back to the applicant with an explanation for why VPN access could not be provided, or Mr. Whelan forgot to do so. In either case, I find that this is insufficient to constitute a violation of the Code. Again, the applicant could have simply followed up with the respondent. Accommodation is a collaborative process. In my view, accommodation requires both those seeking accommodation, and those responsible for providing accommodation, to engage in reasonable communication about accommodation needs and possibilities.

86In any event, based on the uncontradicted evidence of Mr. Whelan and Mr. Slobodin, it also appears that the respondent may not have been able to provide the applicant with greater remote computer access without incurring undue hardship, in light of issues concerning security and confidentiality.

87The allegation that the applicant was subjected to discrimination with respect to the provision of remote computer access is dismissed.

Termination of the applicant’s employment

88As I understand the applicant’s position, she alleges that she was subjected to discrimination on the basis of disability when her employment was terminated by letter only, because the respondent’s policy with respect to termination requires both written notification and a meeting, and the respondent did not meet with her. She alleges that she told her supervisor that she was too ill to attend a scheduled meeting, but no consideration was given regarding her health. The applicant is not alleging that the actual termination of her employment was discriminatory, but only the manner in which her employment was terminated.

89To begin with, in Ontario (Disability Support Program) v. Tranchemontagne, 2010 ONCA 593 at para. 74, the Court of Appeal held that the test for establishing discrimination under the Code is consistently expressed in the jurisprudence as requiring a distinction based on a prohibited ground that creates a disadvantage. In the present case, the applicant has not explained at all how she was disadvantaged in any way when her employment was terminated by letter and the respondent did not also meet with her. The applicant testified that the letter dated March 21, 2012 terminating her employment with the respondent was hand-delivered to her at her home by an AMS representative. I note that the letter also advises the applicant that the respondent’s Human Resources Officer is available to discuss her situation, and provides both an email address and a telephone number for that person.

90It also appears from the evidence that the applicant was aware in the weeks prior to the termination of her employment that the respondent was attempting to meet with her in person. For example, in an email to the applicant dated March 8, 2012, Mr. Pritchard indicates that they must have a meeting on March 12 or 13, 2012. By email correspondence on March 12, 2012, the applicant and Mr. Pritchard agree to meet on March 13, 2012. It appears, however, that the applicant texted Mr. Pritchard on March 13, 2012 and told him that she could not make the meeting that day. It also appears that Mr. Pritchard then left the applicant a telephone message about meeting on March 14, 2012, however, they did not meet on March 14, 2012.

91Mr. Pritchard testified that the respondent was of the view that it was important to proceed with terminating the applicant’s employment as soon as possible, but that he was having significant difficulty scheduling a meeting with the applicant. He testified that he tried quite hard to reschedule. He also testified that the letter terminating the applicant’s employment was re-dated a couple of times because they had scheduled meetings that were not kept.

92The applicant also testified that she had to cancel meetings at the time because she was ill, and that, even if she did not have a disability, asking her to come to work when she was ill is just wrong. She testified that she thought that she had the flu or another respiratory illness which she described as temporary. She did not assert that her illness at the time constituted a disability within the meaning of the Code. As such, although I have found that the applicant has not established that she suffered any disadvantage by not having a meeting with the respondent concerning the termination of her employment, even if she did suffer some disadvantage, it does not appear that any disadvantage would be related to a disability within the meaning of the Code.

93In all of the circumstances, I find that the applicant has not established that she was subjected to any discrimination in relation to the termination of her employment by the respondent and this allegation is dismissed.

Other issues

94The applicant gave considerable evidence at the hearing regarding issues that she had with the respondent that do not appear to be related in any way to disability within the meaning of the Code, or any other Code grounds.

95For example, the applicant testified that she was subjected to a poisoned environment, referring to matters including: a difference of opinion with the AMS’s Communications Officer (“CO”) about content in the AMS’s “President’s email” concerning the PSC, including the design of the PSC logo; being given a written warning by the respondent, dated September 20, 2011, in relation to the nature of her communications and interactions with the AMS’s CO; the respondent raising a concern about the number of hours of training PSC volunteers were undergoing during a training week in the fall of 2011, while the applicant’s supervisors did not address the number of hours that she was putting in at the PSC the same week; the respondent not accepting the applicant’s proposal that her position be made a full-time position, which she described as a violation of “employment standards”, and not limiting her position to a 1-year term; a difference of opinion about graduate students participating in the PSC; the inability to access a particular AMS boardroom; a fee referendum; and, being limited to ordering 5,000, instead of 10,000, pens.

96On more than one occasion at the hearing, the applicant was reminded that the Tribunal’s jurisdiction is limited to actions that are linked to Code grounds. The applicant did not adequately explain how any of the actions referred to in the above paragraph related to disability or any other Code ground. In the circumstances, I find that the applicant has not established that she was subjected to any discrimination within the meaning of the Code in relation to her employment with the respondent, or that she was subjected to a poisoned environment.

ORDER

97In all of the circumstances, the Application is dismissed.