HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Audrey Vassell
Applicant
-and-
Revera Long Term Care Inc. and Elizabeth Bradshaw
Respondents
DECISION
Adjudicator: Brian Cook
Indexed as: Vassell v. Revera Long Term Care Inc.
APPEARANCES
Audrey Vassell, Applicant
Stacy Vassell, Representative
Revera Long Term Care Inc., and Elizabeth Bradshaw, Respondents
Erin Porter, Counsel
Introduction
1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of reprisal and disability.
2The Application was filed on June 14, 2010. After the Application was filed, the applicant asked to amend the Application to include allegations that the respondents failed to accommodate her disability in October 2010, and that she experienced reprisal as a result of filing the Application.
3In Interim Decision 2012 HRTO 30, I dismissed the Application as originally filed for the reasons set out in that Interim Decision. The applicant’s request to amend the Application to include the allegation about the alleged failure to accommodate the applicant’s disability in October 2010 was not opposed by the respondents, and that request was granted.
4On June 8, 2012, the applicant’s employment was terminated. The applicant filed a request to further amend the Application to include allegations that the termination was discriminatory. The applicant had also filed a grievance relating to the termination of her employment. In Interim Decision 2012 HRTO 1492, the Application was deferred pending the outcome of the grievance proceeding. The grievance was ultimately withdrawn by the union and the Application was accordingly reactivated.
5In a Case Assessment Direction dated September 27, 2013, I directed as follows:
The Tribunal will schedule a one-day in person hearing. At the hearing, the Tribunal adjudicator will ask the parties if they are interested in exploring settlement options and offer to assist with such discussions pursuant to the Tribunal’s Mediation/Adjudication process, described in Rule 15A of the Tribunal’s Rules of Procedure.
If settlement does not occur, the adjudicator will hear evidence from the applicant concerning her allegations. The respondent should have one witness present who can provide relevant testimony concerning the applicant's allegations. After hearing this evidence, the adjudicator may ask the parties to make submissions about the merits of the Application or may make further directions regarding additional evidence that may be required to determine the merits of the Application. This may require additional hearing dates.
6The hearing was scheduled for March 19, 2014.
7The applicant appeared at the hearing and was represented by her daughter. The personal respondent was also present. The parties agreed to try mediation, but this did not lead to a settlement. I heard evidence from the applicant and dealt with a number of case management issues. The applicant’s evidence was adduced primarily through questions by me. The applicant's daughter asked additional questions. There was not time to complete the applicant’s evidence and she was not cross-examined.
8The hearing reconvened on May 16, and September 18 and 19, 2014.
Background
9The applicant was employed as a Personal Support Worker (PSW) by the corporate respondent, which operates a long-term care facility. The personal respondent is the manager of the facility. The applicant has a history of bilateral knee problems and has a medical restriction of no prolonged walking.
10The facility has three floors. Assignment to the first floor means more walking than on the second and third floors. Pursuant to the settlement of a grievance in 2008, the applicant was not required to work on the first floor although she could bid on shifts that came available. Shifts can come available if a scheduled person cannot work a shift. Offers to take the shift are made on the basis of seniority. The applicant was offered two shifts in October 2010. The respondent’s policy is to not disclose the floor location for shifts that are offered. The applicant accepted the offer but it turned out that the shifts were for work on the first floor. The applicant alleges that she was forced to work on the first floor contrary to her restrictions for these two days.
11The applicant's employment was terminated following an incident on April 28, 2012. The applicant was involved in transferring a resident from his bed. The resident complained of leg pain during the transfer. He was taken to hospital where it was discovered that he had a fractured femur. Following an investigation, the respondents determined that the applicant had inappropriately transferred the resident which resulted in injury to the resident.
12The circumstances of the April 28, 2012 incident required the respondents to report the incident to the Ministry of Health and Long Term Care. The Ministry conducted an investigation and concluded that the resident’s plan of care required that he be always transferred using a MAXI-lift mechanical lift with two persons assisting. The Ministry concluded that the applicant had transferred the patient using a standing lift, and “working independently without a second person to assist.”
13The applicant’s employment was terminated effective June 8, 2012 on a with cause basis.
14The applicant makes a number of allegations about the patient transfer and the subsequent investigation. First, she alleges that at the time of the incident, she was working under the direction of a nurse and that the nurse authorized and participated in the inappropriate transfer. The nurse denied being involved in the initial transfer and said she became involved only when the resident was in distress during the transfer. The applicant alleges that she was inappropriately and falsely assigned the full blame for the incident and that the personal respondent was involved in a plan to use the incident as a reason to terminate the applicant’s employment. The applicant alleges that, at least in part, this was in reprisal for the fact that the applicant had asserted or attempted to assert her Code-protected rights and also because of the applicant’s disability.
The October 2010 shift issue
15The applicant has a knee disability that, among other things, restricts her ability to walk. The walking requirement for PSWs varies from floor to floor of the institution because of the differing needs and numbers of patients. It is not disputed that work on the first floor requires more walking than work on the third floor.
16An issue arose in 2010 because the applicant was assigned to the first floor. The union filed a grievance, which was settled in Minutes of Settlement dated January 23, 2008. For the purpose of the Application, the important terms of the Minutes included the following:
The Grievor agrees to provide the Employer with a note from her doctor stating that she is capable of using stairs to the 3rd floor.
The Employer agrees to place the Grievor on the 3rd floor part-time day shift, effective upon receipt of the doctor’s note stated in number 4 above, without loss of seniority. However, it is understood that the Grievor may be assigned to other floors as needs arise, such assignments shall be made in accordance with the provisions of the Collective Agreement. The Grievor will be assigned to work the same shifts as she had worked on the third floor prior to July 17, 2007.
The Grievor will be permitted to accept call-in shifts on all floors.
The Union and the Grievor agree that the placement of the Grievor on the 3rd floor constitutes reasonable accommodation, and satisfies the Employer’s duty to accommodate, given the Grievor’s current medical restrictions.
17There were apparently no issues regarding this settlement from January 2008 when it was signed, to October 20, 2010.
18On October 19, 2010, a staff person regularly assigned to the first floor called in to say she would not be at work on the following two days. The applicant was called and offered the two shifts on October 20 and 21. She accepted the shifts. The employer’s practice is to not disclose the floor that the shift is on when calling people to offer them shifts.
19When the applicant reported for work on October 20, she found out that the assignment was on the first floor. She alleges that she complained about this and was told that she had to work on the first floor as she had accepted the shift and that she would be disciplined if she did not do the work.
20In her Application, the applicant indicated that on October 21, she spoke to the Nurse in Charge who said that she could ask and see if someone on another floor was willing to switch so that she would not have to work on the first floor. In her testimony at the hearing, she indicated that she made this request on October 20 and again on October 21.
21She testified that on both days she found someone who was willing to switch, but that she was then told that this would not be permitted and she would have to work on the first floor. She testified that the personal respondent was the person who said she could not switch. She testified that the personal respondent “bared her teeth” when she said this.
22In her testimony, the applicant agreed that she did not provide any medical support for her request that she not work on the first floor. She submits that the employer was aware that she could not work on the first floor from the Minutes of Settlement.
23The personal respondent testified that she really couldn’t recall the alleged interactions with the applicant about this issue. She said that she would have permitted the applicant to switch floors as an accommodation, but that she would have required medical information to support the request.
Allegations of harassment
24The applicant alleges that the personal respondent harassed her on several occasions in 2011 and 2012. These allegations concern interactions between the applicant and the personal respondent in which the applicant felt humiliated or where she felt that the personal respondent abused her power. Some of the allegations concern complaints allegedly made by other workers about the applicant which the applicant believes were not handled fairly.
25The applicant agrees that none of the allegations about the alleged harassment involve any Code ground but she argues that the harassment occurred in reprisal for the applicant filing the original Application.
The applicant's evidence about the April 28, 2010 incident
26The applicant testified that on April 28, 2010 she first interacted with the resident shortly after starting her shift at 7 am. She was passing by his room and noticed that another PSW was having difficulty with the patient. The patient was physically and verbally disruptive, making it difficult to change and dress him and change the bedding. She told the other PSW that she would deal with the resident. After going to the nursing station to get a report on the status of all the patients on the floor, she returned to the resident’s room and was able to change the resident’s clothing and bedding although he was still disruptive.
27The applicant testified that the resident was expressing suicidal ideation. She reported this to the nurse in charge (referred to as “A” in this Decision). A did not really respond. The applicant testified that she returned to see the resident some time later and was able to calm him down by discussing the power of prayer. She was then able to get him dressed. The next step was to transfer him from his bed to his wheelchair.
28There is no dispute that the resident required a mechanical lift (a “Hoya lift” or “MAXI-lift mechanical lift”) and that this was clearly identified in his chart. It is also not disputed that two people were supposed to be involved in any transfer of the resident.
29The applicant testified that the resident said that he did not want to use the Hoya lift and that he wanted to use the “standing lift” instead. The standing lift features a bar that the patient grabs with his hands to help him get from a sitting to a standing position.
30The applicant testified that the resident became increasingly agitated with more suicidal ideation. The applicant testified that she brought a standing lift to the room and that the resident seemed to calm down.
31The applicant testified that she then went to get A to have her assist with the transfer. She explained the situation to A. She testified that she said to A that they should not use the standing lift. A however insisted that they do so because of the resident’s state. The applicant testified that A reminded her that A was the in charge nurse, meaning that the applicant should follow her direction.
32The applicant testified that she and A assisted the resident to stand. He was holding onto the bar, but then began to complain. A left to get others to assist and three other staff members came to the room. Together they lowered the resident to the floor. The applicant testified that at that point, the resident started joking and did not seem in distress. Carol, one of the other staff members, then started to try to lift the resident. He began to complain of knee pain. An ambulance was called and the resident was taken to hospital where it was found that he had a fractured femur.
33The applicant testified that the patient was a large man who weighed in excess of two hundred pounds. She said that it would have been impossible for her to transfer him by himself. The applicant agrees that the Hoya lift should have been used. However, as noted, she states that A insisted that they use the standing lift.
34The applicant stated that to her knowledge, nothing happened during the transfer that could have resulted in a femur fracture. She denied that she dropped the resident during the transfer. She believes that it is possible that the resident had fractured his femur earlier, either during the preceding night, or on some other occasion. She indicated that the resident had a history of getting out of his wheelchair and falling to the floor when his leg gave way.
35A testified at the hearing and gave a different account of what had happened. She said that she was not involved with the resident until the applicant called for assistance. When she came into the resident’s room he was slipping from the standing lift to the floor. She got help and the resident was lowered to the floor. He was then assisted back to bed. He was complaining of leg pain and was sent to hospital where it was found he had a fractured femur. A testified that she does not think that it is possible that the resident had a fractured femur before this incident.
36Following this incident, the respondents conducted an investigation. A number of people involved were interviewed, including the resident.
37The applicant believes that there are inconsistent accounts of what happened from the people interviewed. She believes that the results of the interview with the resident in particular establish that her version of what happened is true.
38According to the notes of the interview with the resident, he stated that the incident occurred when “they transferred me from the bed to wheelchair.” The applicant asserts that the reference to “they” proves that she was not acting alone. However, the notes indicate that the resident was also asked “was there anyone else with her?”, to which he answered “No. By herself.”
39The applicant points out that according to the notes, the resident referred to the person who did the transfer as a “nurse”. She is a PSW and not a nurse, and she believes that the resident would be well aware of this distinction. However, the physical description of the person involved fits the applicant and does not fit A.
40Since the incident involved an injury to a resident, the institution was required to report it to the Ministry of Health and Long Term Care. A Ministry investigator attended and conducted an investigation. She interviewed a number of people at the institution, including the applicant, A, and the personal respondent. She prepared an Inspection Report, dated March 31, 2012. The investigator’s finding was that the applicant had improperly transferred the resident using a standing lift; that she was working independently without a second person to assist; and that as a result, the resident slipped from the lift during the transfer and sustained a fractured femur. This incident resulted in a warning that was placed on the institution’s record.
41The Ministry investigator’s report is dated May 31, 2012.
42Following the incident on April 28, 2012, the applicant was placed on a paid leave, pending the conclusion of the investigation. On June 8, 2012, the applicant’s employment was terminated. The termination letter was signed by the personal respondent. She stated:
Given the very serious nature of your aforementioned misconduct and based on a review of your employment record, including previous discipline, your employment… is terminated on a with cause basis effective today.
43As noted earlier, the applicant filed a grievance, but it was eventually withdrawn by the union.
Analysis and conclusions about the April 28 incident
44The applicant contends that the incident on April 28 was not her fault. She alleges that A was at fault because A was directly involved in the transfer and insisted on using the standing lift. The applicant believes that A subsequently lied and said that the applicant transferred the resident on her own.
45The applicant alleges that the personal respondent then used the situation to fire her even though the personal respondent knew or ought to have known that in fact the applicant had done nothing wrong.
46The applicant concedes that even if she is right about this, there is no obvious connection between this alleged cover-up and conspiracy and her Code-protected rights. The applicant alleges that the connection with the Code is that a major reason why the personal respondent was motivated to get rid of her was that the applicant had filed the original Application with this Tribunal which named the personal respondent as a respondent. As such, the cover-up and conspiracy were done in reprisal for having filed the original Application.
47After the applicant presented her evidence, the respondents requested that the Application be dismissed as having no reasonable prospect of success. The request was rejected at that time because I determined that it was necessary to hear evidence from the respondents.
48After hearing the evidence of the applicant, A, and the personal respondent, the respondents’ counsel made a renewed request that the Application be dismissed as having no reasonable prospect of success. I agreed to hear submissions on whether the Application should be dismissed as having no reasonable prospect of success.
49The applicant argued that the Application should not be dismissed. She wanted to call more witnesses, including the Ministry of Health and Long Term Care investigator and more of the respondent’s staff who were involved in the incident and the subsequent investigation. She asserted that this evidence would show that she had not transferred the resident alone.
50It was apparent to me that the primary objective for the applicant in respect of this Application is to clear her name and to prove that she was falsely and wrongly accused of having injured a resident and that her employment was unjustly terminated. The applicant was supported in this goal by her family members who were present and represented her during the hearing. I do not question the sincerity of the applicant and her family or the steps that they have taken to respond to a situation that they believe was wrong and unfair. However, this Tribunal can only be the appropriate forum to deal with alleged wrongs and unfairness if there is a connection to the Code. As discussed at the hearing, even if the applicant could show that she was falsely and wrongly accused and that any injury to the resident was not her fault, this would not establish any infringement of her Code-protected rights unless she could show that reprisal for having filed the original Application was a factor in what happened.
51Section 8 of the Code provides:
- Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing.
52With respect to reprisal, the Tribunal stated in Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389 at paragraph 23: “Reprisal under s. 8 of the Code must be a reprisal for the assertion of human rights and there must be an intention to reprise for that reason”. See also Noble v. York University, 2010 HRTO 878 at paragraph 31.
53The Application that was originally filed with the Tribunal included allegations of discrimination on the basis of disability over a period of years. Those allegations were dismissed in Interim Decision 2012 HRTO 30. The allegations were dismissed because of delay and because the allegations had been resolved in the settlement of a grievance.
54The original Application also included an allegation of reprisal. That allegation was dismissed in the Interim Decision for the following reasons:
In regard to the period before the applicant filed the Application, she says that she tried to assert her rights under the Code but met with “very little success”. However, there are no allegations of anything specific that occurred that was in reprisal in respect of these attempts and it does not appear that these attempts went as far as a claim or proceeding or application. There is no suggestion that the she experienced difficulties related to a refusal to infringe the Code-protected rights of any other person.
I am satisfied that there is no reasonable prospect that the applicant could successfully establish that she experienced reprisal within the meaning of section 8 of the Code for any period before the Application was filed.
In regard to the events after the Application was filed, the applicant concedes that nothing was specifically said to suggest that anything was being done in reprisal for her having filed the Application. However, she believes that the various labour relations issues that arose after she filed the Application were likely influenced by the fact that she had filed the Application.
The respondents note that the history between the parties in this case has been strained and marked by numerous confrontations and labour relations issues. This was the case before the Application was filed and also after the Application was filed. There is no indication that the fact that the Application was filed changed the behaviours of anyone concerned.
I agree with the respondents on this point and I am accordingly satisfied that there is no reasonable prospect that the applicant could successfully prove that she experienced reprisal within the meaning of section 8 of the Code after she filed the Application.
55After the original Application was dismissed, except for the allegations relating to the events in October 2010 (?), the Application was amended to include the allegation that the decision to terminate the applicant's employment was made in reprisal for her assertion of her human rights, and in particular, because she had filed the original Application.
56Even if the applicant could prove that what happened with the resident was entirely A’s fault, that the applicant did nothing wrong, and that A lied, this would not establish reprisal. The applicant does not allege that A’s actions were motivated by reprisal. She rather alleges that the personal respondent was motivated by reprisal.
57The evidence is clear that the information that the personal respondent had at the time the applicant's employment was terminated showed that the incident with the resident happened because the applicant was trying to transfer him by herself and using the wrong lift. This conclusion was consistent with the results of the internal investigation and also with the report of the Ministry inspector who did her own independent investigation.
58I do not agree with the applicant that the internal interview with the resident shows that A was involved in the initial transfer. While there is a reference to the lift involving “they”, the resident was specifically asked if there was someone else involved in the lift and he said that there was only one person. I further find that the resident’s reference to a “nurse” instead of a PSW is not significant. I do not accept that the resident would necessarily appreciate the distinction during an interview about what happened. In my view, the notes from the internal investigation indicate that the applicant alone was involved in the initial transfer of the resident.
59I agree with the applicant that there are some inconsistencies as between the accounts of the others interviewed with regard to who came to the room and in what order and also regarding what exactly happened.
60However, even taking these inconsistencies into account, the fact is that the information that was before the personal respondent as a result of the internal investigation and the investigation by the Ministry investigator, was that the applicant alone was involved in the initial transfer of the resident.
61It is entirely possible, as the applicant argues, that both of these investigations were flawed and that she would have been exonerated if they had not been flawed. The additional evidence that the applicant wished to adduce in the hearing was related to her proposition that A was the true culpable person and not the applicant.
62However, at the time of the termination of employment, these investigations established that the applicant was solely responsible and it was this information that formed the basis for the decision to terminate the applicant’s employment. As a consequence, even if the applicant were able to prove through this Application that she was wrongly and falsely accused, this would not lead to a conclusion that she had experienced reprisal under section 8 of the Code.
63The applicant suggests that the personal respondent actually knew the applicant was blameless and that A was responsible and had lied. She suggests that the personal respondent went along with this conspiracy in order to get rid of the applicant.
64Even if the applicant could prove that this had happened, it still would not establish reprisal under section 8 of the Code. To establish reprisal, the applicant would have to show that that a reason the personal respondent was a party to the cover up and conspiracy was because the applicant had filed the original Application, and that this motivation was distinct from any animus there may have been arising out of several years of labour relations contention that was not Code-related. She would moreover have to do this in the face of the fact that the Application in question had been almost entirely dismissed in the earlier Interim Decision, something that happened before her employment was terminated.
65She would thus have to show that the personal respondent participated in a fairly elaborate conspiracy in order to get rid of the applicant and that a reason for doing this was that the applicant had filed an Application that had been almost entirely dismissed.
66Having heard the evidence of the applicant, the personal respondent, and A, I am accordingly satisfied that there is no reasonable prospect that the applicant could successfully prove that her employment was terminated because of reprisal within the meaning of section 8 of the Code after she filed the Application. In determining that it is appropriate to dismiss this allegation at this stage, I have followed the approach set out and explained by the Tribunal in Pellerin v. Conseil scolaire de district catholique Centre-Sud, 2011 HRTO 1777 (see paras. 9 – 32). In particular, I have taken into account that the applicant asserts that the additional evidence she wishes to call would show that she had not transferred the resident alone. However, as I have also explained above, even if she were able to establish this, it still would not establish reprisal under section 8 of the Code. For this reason, I am satisfied that there is no Code-related purpose in hearing more evidence about the events that events in April and May 2012, and that this aspect of the Application must be dismissed as having no reasonable prospect of success.
Allegations of harassment
67The allegations about harassment in 2011 and 2012 seem to me to be very similar to the allegations of unfair treatment that were part of the original Application and which were said to also have related to reprisal. As noted earlier, in Interim Decision 2012 HRTO 30, I commented as follows with regard to those allegations:
In regard to the events after the Application was filed, the applicant concedes that nothing was specifically said to suggest that anything was being done in reprisal for her having filed the Application. However, she believes that the various labour relations issues that arose after she filed the Application were likely influenced by the fact that she had filed the Application.
The respondents note that the history between the parties in this case has been strained and marked by numerous confrontations and labour relations issues. This was the case before the Application was filed and also after the Application was filed. There is no indication that the fact that the Application was filed changed the behaviours of anyone concerned.
68In this case, there is a long history of labour relations strife involving the applicant and the respondents. This history could well cause the respondents to have a negative opinion about the applicant. Part of that history includes the fact that the applicant filed the original Application. Even if there was a worsening of the labour relations strife after the Application was filed, it does not follow that the worsening was because of the Application, as opposed to a generally deteriorating relationship.
69To successfully establish reprisal contrary to section 8 of the Code, the applicant must be able to show evidence that the respondents consciously did something to punish her that they would not have otherwise done, but for the fact that the applicant asserted her Code-protected rights.
70In regard to the issue of the alleged harassment, the parties had a full opportunity to put in her evidence about what she believes happened. This aspect of the Application was not dismissed as having no reasonable prospect of success. The question on this issue is whether the applicant has established that it is more probable than not that the alleged reprisal occurred because of reprisal. Having heard the evidence from the parties about the allegations of harassment, I find that the applicant has not proved that the alleged harassment was related to reprisal contrary to section 8 of the Code.
The October 2010 shift issue
71The applicant alleges that the respondents discriminated against her because of disability when she was forced to work on the first floor on October 20 and 21, 2010.
72The applicant says that she requested accommodation and this was refused when she was not allowed to switch floors with a co-worker who was willing to do so. This happened either on October 21, as pled in the Application, or according to the applicant’s evidence, on both days.
73The personal respondent testified that she does not recall the details about this issue. The respondents say that in general, they do not allow floor changes to ensure continuity of care of residents. However, there is no suggestion that allowing the applicant to switch on these two days would have resulted in undue hardship. At the same time, an employer is not required to provide all accommodation requested by a disabled employee. An employer is entitled to be satisfied that the request is bona fide and necessary in order to accommodate the employee.
74The issue of working on the first and third floors was the main subject of the January 2008 Minutes of Settlement that were signed by the employer, the union and the applicant. Under those Minutes, the applicant was to be generally assigned to the third floor. This was recognized as an accommodation and it seems to have been understood that a main reason for the accommodation was that the applicant experienced increased knee symptoms with prolonged walking and that there was more walking involved on the first floor than the third floor.
75The Minutes were clear, however, that the applicant might be “assigned to other floors as needs arise”. The Minutes did not suggest that the applicant would never be assigned to the first floor. They were also clear that the applicant would be free “to accept call-in shifts on all floors”, which presumably would include a call in to the first floor.
76It seems to me that the intention of the Minutes of Settlement was to arrange an accommodation that meant that the applicant would generally work on the third floor but might from time to time also work on other floors, including the first floor.
77On October 20 and 21 the applicant accepted a call-in shift which she learned on reporting for work was on the first floor. The fact that the applicant was offered a call-in shift on the first floor was clearly compatible with the Minutes of Settlement.
78It is possible that the applicant’s disability worsened after the Minutes were signed in January 2008 and I have no reason to doubt her testimony that she experienced increased knee pain as a result of working on the first floor. However, if by October 2010 the applicant had worsened to the point that she in fact was restricted from working on the first floor at all, it seems to me that she had some positive obligation to let the employer know about this. In the context of the history of this issue, that would likely have included the need to provide medical confirmation of any change in restrictions.
79I appreciate that the issue apparently did not come up for the applicant between January 2008 and October 2010 because she was not assigned to the first floor in that time. However, the issue is whether the respondent discriminated against the applicant by refusing to allow her to switch floors. Again, given the historical context of this issue, while I can appreciate why the applicant may have felt that the refusal was unfair, I cannot conclude that the respondent discriminated against the applicant contrary to the Code.
DECISION
80The Application is dismissed.
Dated at Toronto, this 17th day of March, 2015.
“Signed by”
Brian Cook
Vice-chair