McNaughton v. ParaMed Home Health Care, 2015 HRTO 984

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jean McNaughton

Applicant

-and-

ParaMed Home Health Care, a division of Extendicare (Canada) Inc.

Respondent

DECISION

Adjudicator: Brian Cook

Date: July 23, 2015

Citation: 2015 HRTO 984

Indexed as: McNaughton v. ParaMed Home Health Care

WRITTEN SUBMISSIONS

Jean McNaughton, Applicant

Moira Wallace, Counsel

Paramed Home Health Care, Respondent

Mary Kokosis, Counsel

1This Application alleges discrimination with respect to employment because of disability and age contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2This Decision considers whether the Application was filed in accordance with section 34 of the Code which provides:

34. (1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series.

(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

Background

3The applicant was employed by the respondent as a Personal Support Worker (PSW) from May 2000 to October 3, 2013, when she was fired.

4The applicant experienced a work-related low back injury in February 2013. As a result of the injury, her medical restrictions meant she could not continue to work as a PSW. In September 2013, the respondent hired a private investigator to conduct surveillance of the applicant. On the basis of the surveillance, the respondent determined that the applicant had misrepresented the degree of her disability. Following a meeting at the workplace on October 3, 2013, the applicant’s employment was terminated on a with cause basis.

5There was no subsequent contact between the parties.

6The surveillance was reviewed by the Workplace Safety and Insurance Board (“WSIB”) which concluded that the applicant had not misrepresented her disability and that the activities observed during surveillance were consistent with the applicant’s medical restrictions.

7The WSIB determined that the respondent had breached its re-employment obligations under section 41 of the Workplace Safety and Insurance Act, S.O. 1997, c. 16, as amended (“WSIA”), which reads in part as follows:

41.(1) The employer of a worker who has been unable to work as a result of an injury and who, on the date of the injury, had been employed continuously for at least one year by the employer shall offer to re-employ the worker in accordance with this section.

(3) The Board may determine the following matters on its own initiative or shall determine them if the worker and the employer disagree about the fitness of the worker to return to work:

1. If the worker has not returned to work with the employer, the Board shall determine whether the worker is medically able to perform the essential duties of his or her pre-injury employment or to perform suitable work.

2. If the Board has previously determined that the worker is medically able to perform suitable work, the Board shall determine whether the worker is medically able to perform the essential duties of the worker’s pre-injury employment.

(4) When the worker is medically able to perform the essential duties of his or her pre-injury employment, the employer shall,

(a) offer to re-employ the worker in the position that the worker held on the date of injury; or

(b) offer to provide the worker with alternative employment of a nature and at earnings comparable to the worker’s employment on the date of injury.

(5) When the worker is medically able to perform suitable work (although he or she is unable to perform the essential duties of his or her pre-injury employment), the employer shall offer the worker the first opportunity to accept suitable employment that may become available with the employer.

(6) The employer shall accommodate the work or the workplace for the worker to the extent that the accommodation does not cause the employer undue hardship.

(7) The employer is obligated under this section until the earliest of,

(a) the second anniversary of the date of injury;

(b) one year after the worker is medically able to perform the essential duties of his or her pre-injury employment; and

(c) the date on which the worker reaches 65 years of age.

(10) If an employer re-employs a worker in accordance with this section and then terminates the employment within six months, the employer is presumed not to have fulfilled the employer’s obligations under this section. The employer may rebut the presumption by showing that the termination of the worker’s employment was not related to the injury.

(11) Upon the request of a worker or on its own initiative, the Board shall determine whether the employer has fulfilled the employer’s obligations to the worker under this section.

(13) If the Board decides that the employer has not fulfilled the employer’s obligations to the worker, the Board may,

(a) levy a penalty on the employer not exceeding the amount of the worker’s net average earnings for the year preceding the injury; and

(b) make payments to the worker for a maximum of one year as if the worker were entitled to payments under section 43.

8In this case, the WSIB determined that the respondent had not fulfilled its duty to re-employ under section 41 because it had terminated the applicant’s employment. By decision dated January 8, 2014, the Claims Manager communicated this determination to the workplace parties. The Claims Manager advised the respondent that it could offer to re-employ the applicant and that if it did not do so before January 17, 2014, a fine would be levied against, it pursuant to section 41(13)(a). The respondent did not offer to re-employ the applicant. A fine was levied against the respondent and the applicant was entitled to continuing loss of earnings benefits.

9The Application was filed on January 16, 2015. Under section 34 of the Code, noted earlier, an Application must be filed within one year of the alleged discriminatory event.

10The respondent argues that the alleged discriminatory event in this case was the termination of the applicant’s employment on October 3, 2013. As this was more than one year before the Application was filed, the respondent argues that the Application was not filed in time and should be dismissed on that basis. The respondent submits that the fact that the WSIB subsequently determined that the respondent had not fulfilled its duty to offer to re-employ the applicant cannot be seen as a new or continuing act of alleged discrimination.

11The applicant argues that after October 3, 2013, there was continuing discrimination in the refusal to re-employ the applicant contrary to section 41 of the WSIA. The applicant further submits that the respondent discriminated against the applicant again in the period January 7 to 17, 2014. On January 7, the WSIB determined that the respondent had a duty to offer re-employment and advised the respondent that a fine would be levied if it did not do so by January 17, 2014. The applicant notes that January 17, 2014, was within one year of the January 16, 2015, when the Application was filed.

12The applicant submits that the re-employment obligation under section 41 of the WSIA lasted until July 2014 and on that basis, argues that there was continuing discrimination until that time.

Conclusions

13I agree with the respondent that the last incident of alleged discrimination in this case was October 3, 2013, when the applicant's employment was terminated.

14I agree with the respondent that the events in January 2014 are not a further act of alleged discrimination. In January 2014, there was a decision by the WSIB that the respondent had not fulfilled its re-employment obligation to the applicant when it terminated her employment in October 2013. That decision represents an adjudicative finding by the WSIB and cannot be seen as an alleged act of discrimination by the respondent. The finding that the respondent had not fulfilled its obligations under the WSIA did not result in any new act of discrimination by the respondent.

15The WSIB then advised the respondent that it would levy a penalty against the respondent, if the respondent did not offer to reemploy the applicant by January 17, 2014.

16This too cannot represent an act of discrimination against the applicant by the respondent. The decision of the Board was that it would levy a penalty against the respondent, if it did not offer to reemploy the applicant by January 17, 2014. This was entirely in reference to the decision to terminate the applicant’s employment in October 2013 and was not related to any new incident. The decision of the employer to not offer to reemploy the applicant was a decision to accept the penalty under the WSIA (subject to its right of appeal which it has apparently exercised). It was not an act of discrimination contrary to the Code.

17To the extent that the Application includes allegations related to the ground of age, any allegations relate to the period prior to October 2013.

18For these reasons, I find that the last incident of alleged discrimination was the termination of the applicant’s employment in October 2013. This occurred more than one year before the Application was filed and so the Application was not filed in accordance with section 34(1) of the Code.

19The applicant has not argued that there was a good faith explanation for the delay and so there is no basis for the Application to proceed under section 34(2).

Decision

20The Application is dismissed because it was not filed in time.