Ronald Ihasz v. Her Majesty the Queen in Right of Ontario as represented by the Minister of Revenue, 2015 HRTO 352

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ronald Ihasz Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Minister of Revenue Respondent

DECISION

Adjudicator: Douglas Sanderson Date: March 20, 2015 Citation: 2015 HRTO 352 Indexed as: Ihasz v. Ontario (Revenue)

WRITTEN SUBMISSIONS

Ronald Ihasz, Applicant Self-represented

Her Majesty the Queen in Right of Ontario as represented by the Minister of Revenue, Respondent Paul Meier, Counsel

1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of disability and reprisal or threat of reprisal.

The Application

2The applicant worked for the respondent as a Tax Administration Manager (“TAM”) and specialized in the Employer Health Tax in two periods of employment with the respondent: 1990-1999 and 2004-2008. The applicant noted that he previously filed human rights complaints against the respondent and that the settlement of these complaints resulted in his reinstatement to employment in 2004. The applicant states that he has a disability, clinical depression, that is well known to the respondent.

3In the Application, the applicant states that his claim for long term disability benefits was denied in January 2012 and he therefore decided to return to work. The applicant alleges that he requested that the employer deal with his situation pursuant to the Employment Accommodation & Return to Work Operating Policy. Instead, the respondent designated him as surplus. The applicant alleges that the respondent failed to accommodate him by placing him in his TAM position, as he requested, which continued to exist at the time, and by filling two vacant TAM positions through job competitions, rather than placing him in one of them.

The Response

4The respondent states that it identified the applicant as one of the employees to be transferred to the Canada Revenue Agency (“CRA”) as part of the Harmonized Sales Tax initiative. The respondent states that it advised the applicant that his position would be eliminated on November 25, 2010, as part of “Wave 1” of the initiative. In October 2010, the respondent posted a temporary 18-month TAM position in the Mississauga Office, where the applicant worked, but the applicant did not apply for it because he had accepted a conditional offer of employment from the CRA in July 2010. Another employee filled the position. The temporary TAM position was terminated on February 29, 2012.

5The respondent states that the applicant went on a medical leave of absence from August 3, 2010 to February 2011 and the respondent deferred his start date with the CRA accordingly. The applicant returned to work on February 4, 2011 and was assigned to a special project in the Hamilton office. The CRA did not approve the applicant’s “Reliability Status” following a security screening process and in April 2011 advised the respondent that the applicant was “deemed to have declined the CRA’s offer of employment”, pursuant to the terms of the transfer agreement. The respondent states that it promptly notified the applicant that because his permanent TAM position had been eliminated he would be declared surplus, pursuant to the Operating Procedure for the Workforce Adjustment of Employees in the Management Compensation Plan and Excluded Category, the relevant workforce adjustment policy. The respondent states that it treated all employees who were “deemed declined” by the CRA in the same manner.

6On or about April 26, 2011, the applicant went on an extended sick leave and received short term disability benefits until October 26, 2011. The applicant also applied for long term income protection benefits, which were approved on an administrative basis until December 31, 2011. The respondent deferred delivery of the applicant’s surplus notice until he was medically fit to work. The respondent posted two permanent TAM vacancies while the applicant was on medical leave, which were filled following job competitions. The applicant did not apply for either position.

7The applicant’s claim for long term income protection was denied in mid-January 2012 and shortly thereafter the applicant provided the respondent with a medical note indicating that he would be fit to return to work on January 30, 2012. On January 26, 2012, the respondent informed the applicant that he would be receiving his surplus notice. On January 27, 2012, the applicant provided an Employee Health Information Form that suggested that the applicant should be placed in his “home base position in Mississauga (Tax Administration Manager)”. The respondent states that this position had been eliminated in November 2010 and the temporary TAM position in Mississauga came to an end on February 29, 2012. The respondent states that it placed the applicant on “home duty assignment” where he could focus on his redeployment search. The applicant attended one job interview, but was not successful. On March 7, 2012, the applicant provided the respondent with a doctor’s note stating that he was unable to work until further notice.

8The respondent submitted that it eliminated the applicant’s permanent position for bona fide business reasons as a result of the HST initiative. The respondent submitted that the Code does not require it to accommodate an employee with a disability by allowing him to stay in a position that has been eliminated or to trump the rights of other employees. The respondent denied that its actions towards the applicant amount to discrimination or a reprisal under the Code.

Procedural History

9This proceeding has had a significant procedural history. In an Interim Decision, 2012 HRTO 784, dated May 10, 2013, the Tribunal summarized the procedural history to that point as follows, at paragraph 2:

The hearing of this matter was scheduled to be heard on January 14, 15 and 16, 2013, in Toronto. The parties spent January 14, 2013 in an unsuccessful attempt to resolve the matter through mediation/adjudication. The January 15 and 16, 2013 hearing dates were adjourned because the applicant’s health prevented him from attending. In Ihasz v. Ontario (Revenue), 2013 HRTO 333, an earlier Interim Decision in this matter, I dismissed the applicant’s requests that I recuse myself because of an alleged reasonable apprehension of bias and for the Tribunal allow him to re-open a related application that he withdrew. In that Interim Decision, I also directed the parties to communicate with each other and provide the Tribunal with dates on which they are both available on three consecutive days to continue the hearing of this matter. The parties, however, have been unable to agree upon dates and the applicant has requested accommodation regarding the duration, location and format of the hearing. This Interim Decision addresses these scheduling issues.

In 2013 HRTO 784, the Tribunal denied the applicant’s accommodation request regarding the rescheduling of the hearing because he did not provide sufficient medical evidence to support it and ordered that the Application be set down for hearing.

10In an Interim Decision 2013 HRTO 2112, dated December 20, 2013, the Tribunal dismissed a production request from the applicant and acknowledged that the Tribunal had not scheduled the matter for hearing due to administrative oversight. The Tribunal again directed that the matter be set down for hearing and gave the applicant direction regarding the information required to support any accommodation request he may wish to make. The Tribunal set the matter down for hearing on April 22 and 25, 2014.

11In Interim Decision 2014 HRTO 376, dated March 17, 2014, the Tribunal again addressed several procedural issues. The Tribunal partially granted a production request from the applicant. The Tribunal also rejected the applicant’s submission that the Tribunal could decide the issue of whether the respondent failed to accommodate him by placing him on surplus in 2012 (effectively the main issue in dispute) by conducting a “desk review” of the respondent’s Employment Accommodation & Return to Work Operating Policy, i.e., without a hearing. Finally, the Tribunal denied the applicant’s request to adjourn the Application indefinitely because the medical information he provided, a one sentence note, was again insufficient. The Tribunal informed the applicant that he could renew the request and provided the applicant with detailed instructions regarding the medical information he must provide to support such a request.

12The applicant responded to the Interim Decision of March 17, 2014 in an e-mail message dated March 31, 2014. In that message, the applicant stated that his reprisal allegation could not succeed because the Tribunal did not grant his production request in full and that a hearing was no longer necessary on this issue. The applicant submitted that as both parties had submitted evidence “common sense dictates the Employment Accommodation & Return to Work Operating Policy can be decided” without a hearing. The applicant went on to request that the Tribunal make a ruling regarding the Employment Accommodation & Return to Work Operating Policy as it applied to him, which in his view would bring the Application to completion. The applicant also stated that he continued to suffer significantly from his illness and would not attend the hearing on April 22, 2014. The applicant stated that he would meet his physician on April 15, 2014 and would mail a note to the Tribunal.

13On April 15, 2014, the applicant sent an e-mail message to the Tribunal in which he stated that he had seen his doctor who confirmed that he would be unable to attend a hearing indefinitely and that he had mailed a note confirming this. The Tribunal responded by e-mail shortly afterward on the same day to request that the applicant send the note by facsimile or by scanning it and sending it as an e-mail attachment, in light of the upcoming hearing. The applicant replied by e-mail in the morning of April 16, 2014, as follows:

Sorry but I do not have a scan anymore & I will not be attending as I previously said, so please make a final decision.

14In an e-mail message sent later on April 16, 2014, the Tribunal directed the applicant to clarify whether he was requesting to withdraw the Application. The applicant sent the following e-mail message in response:

Dear Registrar:

I mailed my doctor note to the H.R.T.O. yesterday & I do not have a copy because I do not care anymore. Every decision has been biased in favour of the Respondent. There is very little to decide on now based on my March 31, 2014 submission.

The only reason for a hearing now is the H.R.T.O. is probably in collusion with the Ministry of Finance to set me up to be fired! at a hearing.

Therefore, I will never attend a hearing at the H.R.T.O..

Decide whatever you want.

Mr. Ron Ihasz

15On April 17, 2014, the Tribunal issued a Case Assessment Direction noting that the applicant appeared to be taking inconsistent positions: indicating that he would not attend a hearing because of his dissatisfaction with the process on one hand and indicating that he could not attend because of illness on the other. The Tribunal cancelled the hearing date on April 22, 2014 and directed the applicant to clarify in writing by the end of business on April 22, 2014 whether he would not attend a hearing under any circumstances or whether he was seeking an adjournment of the hearing pending improvement of his medical condition.

16Although not directed to do so, the respondent filed submissions in respect of the Case Assessment Direction of April 17, 2014. The respondent recounted the procedural history leading up to the hearing dates. The respondent submitted that the applicant had not provided any medical information and had refused to attend any Tribunal hearings to have his own matter heard. The respondent noted this meant that the applicant will not bring any evidence under oath, or make any submissions and that the respondent is denied the opportunity to cross-examine the applicant. The respondent submitted that in these circumstances the applicant has abandoned his Application and that the Tribunal should dismiss it on that basis.

17In an e-mail message dated April 22, 2014, the applicant reiterated that the note from his physician confirmed that he could not attend a hearing for an indefinite period, possibly a few years. On April 23, 2014, the Tribunal received the note from the applicant’s physician, which stated that the applicant could not attend a hearing for an indefinite time for medical reasons. On April 24, 2014, the Tribunal advised the parties that the hearing on April 25, 2014 was cancelled and that it would issue a decision in due course.

18Regrettably, the Tribunal’s decision in this matter was delayed. By e-mail message dated January 16, 2015, the applicant alleged that the respondent had not complied with the Tribunal’s Interim Decision of March 17, 2014, 2014 HRTO 376 regarding the production of documents. For convenience, the Tribunal’s order regarding production was as follows, at paragraph 22:

1. The respondent shall review its e-mail records for 2012 and deliver to the applicant all e-mail messages held by Ms. Rae that in any way touch on the issue of the applicant’s surplus status, or confirm that no such messages exist, no later than the end of business on March 31, 2014

The applicant submitted that the Tribunal should require the respondent to produce the documents as directed, which he estimated amounted to several hundred e-mail messages. The applicant also reiterated that the application of the Employment Accommodation & Return to Work Operating Policy as it pertains to him, as well of whether the respondent was entitled to put him on surplus can be decided without a hearing. The applicant submitted that the Tribunal should make a final decision without a hearing. The applicant noted that he remains unable to attend a hearing.

19The respondent responded to the applicant later on January 16, 2015 by e-mail. The respondent submitted that it had complied with the Tribunal’s order on March 31, 2014. The parties then exchanged several messages regarding whether the respondent complied with the Tribunal’s order. In that regard, the Tribunal’s records indicate that the respondent responded to the Interim Decision of March 17, 2014 in an e-mail dated March 31, 2014, disclosing several documents. The Tribunal’s records further show that the respondent also addressed the message to the applicant at the e-mail address the applicant has used throughout this proceeding. Accordingly, the applicant’s submission that the respondent did not comply with this order is inaccurate.

Analysis and Decision

20Notwithstanding the Tribunal’s rejection of his request for a “desk review” in Interim Decision 2014 HRTO 376, the applicant has continued to request that the Tribunal address the issue of accommodation without a hearing. Pursuant to section 43(2) of the Code, the applicant is entitled to an opportunity to make oral submissions regarding his Application. Section 43(2) provides as follows:

The rules shall ensure that the following requirements are met with respect to any proceeding before the Tribunal:

1. An application that is within the jurisdiction of the Tribunal shall not be finally disposed of without affording the parties an opportunity to make oral submissions in accordance with the rules.

In my view, the applicant’s request to determine the issue of accommodation without a hearing is a waiver of his entitlement to make oral submissions in this matter. Accordingly, I will decide the matter based on the materials filed by the parties.

21The relevant sections of the Code are as follows:

5(1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.

8. 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.

9. (1) In Part I and in this Part,

“disability” means,

(d) a mental disorder

11(1) A right of a person under Part I is infringed where a requirement, qualification or factor exists that is not discrimination on a prohibited ground but that results in the exclusion, restriction or preference of a group of persons who are identified by a prohibited ground of discrimination and of whom the person is a member, except where,

(a) the requirement, qualification or factor is reasonable and bona fide in the circumstances; or

(b) it is declared in this Act, other than in section 17, that to discriminate because of such ground is not an infringement of a right.

(2) The Tribunal or a court shall not find that a requirement, qualification or factor is reasonable and bona fide in the circumstances unless it is satisfied that the needs of the group of which the person is a member cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.

(3) The Tribunal or a court shall consider any standards prescribed by the regulations for assessing what is undue hardship.

22The respondent did not dispute that that the applicant has a disability within the meaning of the Code. The applicant has the onus of proving that the respondent violated his Code rights on a balance of probabilities, i.e., that it is more likely than not that the respondent discriminated against him by failing to accommodate his disability-related needs. Clear, convincing and cogent evidence is required to satisfy the balance of probabilities test. See F.H. v. McDougall, 2008 SCC 53, [2008] 3 SCR 41 at paragraph 46. However, the applicant need not prove that the prohibited ground of discrimination was the sole factor leading to the discriminatory conduct. See Phipps v. Toronto Police Services Board, 2009 HRTO 877.

23The applicant focussed on the issue of accommodation. However, as the Tribunal noted in Baber v. York Region District School Board, 2011 HRTO 213, the duty to accommodate is not a free standing obligation under the Code. Rather, it arises only pursuant to sections 11, 17 or 24 of the Code where a person is disadvantaged because of a prohibited ground of discrimination and the respondent defends its otherwise discriminatory actions. The Supreme Court of Canada noted in British Columbia (Public Service Employee Relations Commission) v. BCGSEU, 1999 CanLII 652 (SCC), [1999] 3 SCR 3 (“Meoirin”) that the inquiry moves to the bona fides of the requirement in question only if a prima facie case has been made out that the requirement is discriminatory. In other words, the duty to accommodate arises only where an applicant has been subject to direct or adverse effect discrimination. The applicant bears the onus of establishing a prima facie case of discrimination, which, if established, shifts the evidentiary burden to the respondent to show that it accommodated the applicant to the point of undue hardship.

24The prohibition against reprisal protects individuals from intimidation and retaliation that might deter them from claiming and enforcing their Code. A reprisal claim is distinct from allegations of discrimination because an applicant must establish the respondent intended to punish or retaliate against the applicant. The Tribunal set out the elements of a successful reprisal application in Noble v. York University, 2010 HRTO 878 at paragraphs 33 and 34, as follows:

Thus, in a complaint or application alleging reprisal, the following elements must be established:

a. An action taken against, or threat made to, the complainant;

b. The alleged action or threat is related to the complainant having claimed, or attempted to enforce a right under the Code; and

c. An intention on the part of the respondent to retaliate for the claim or attempt to enforce the right.

In addition, the following principles are relevant:

a. There is no strict requirement that the complainant has filed a complaint or application under the Code, and

b. There is no requirement that the Tribunal find the respondent did in fact violate the complainant’s substantive rights to be free from discrimination.

25The respondent filed a book of documents consisting of 113 tabs. These documents support the respondent’s position as described in paragraphs 4-8, above. The parties both filed correspondence that indicates that the applicant did not want to transfer to the CRA and made requests to remain with the respondent, which were denied. In the absence of viva voce evidence or argument contradicting the documents or providing a context for interpreting them differently, the materials before me do not support an inference that the decision to declare the applicant to be surplus was connected to his disability or an inference that this decision was a reprisal.

26The duty to accommodate does not create rights an employee would not otherwise have. Rather, the purpose of accommodation is to take measures to eliminate barriers imposed by disability-related restrictions. See for example, Hydro-Québec v. Syndicat des employés de techniques professionnelles et de bureau d’Hydro-Québec, section locale 2000, (SCFP-FTQ), 2008 SCC 43. The applicant’s position is that the respondent was obliged to place him in a permanent position because of his disability, rather than declare him surplus. However, employees without disabilities who are declared surplus are required to search for new employment within the Ontario Public Service pursuant to the applicable policies. Pursuant to the Operating Procedure for the Workforce Adjustment of Employees in the Management Compensation Plan and Excluded Category the applicant has six months to search for a new position, after which severance entitlements would be triggered. The applicant’s disability did not give him a right to avoid surplus procedures and simply be placed in a job. The materials before me indicate that the applicant’s disability prevented him from participating in the job search process resulting from his surplus status on two occasions, which triggered the respondent’s duty to accommodate under section 11 of the Code. The materials also indicate that the respondent deferred the commencement of his job search period until he was well enough to participate in a job search. In my view, deferral of the job search was an appropriate accommodation in the circumstances.

27The Application is dismissed.