HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Brenda Daugherty
Applicant
-and-
Shoppers Home Health Care Canada Inc.
Respondent
INTERIM DECISION
Adjudicator: Brian Cook
Indexed as: Daugherty v. Shoppers Home Health Care Canada Inc.
APPEARANCES
Brenda Daugherty Self-represented
Shoppers Home Health Care Inc., Respondent Dianne Jozefacki, Counsel
1This Application alleges discrimination with respect to services because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended ("the Code").
2The applicant is a person with a disability who requires the use of power wheelchair. She needs custom-made seating for the chair. In 2014, she required a new chair and ordered one from the respondent.
3The applicant filed an earlier Application in regard to issues that arose regarding the order. That Application was settled between the parties on November 21, 2014. The settlement included a release with respect to events up to November 21, 2014.
4The Tribunal scheduled a preliminary hearing to hear submissions about whether the Application could proceed. The preliminary hearing was heard on November 16, 2016 and dealt with two issues:
Do the Minutes of Settlement and Release signed by the applicant mean that the applicant is precluded from bringing this Application?
If the applicant is permitted to bring the Application, should it be dismissed as having no reasonable prospect of success?
The Release
5The respondent took the position that the Release signed by the applicant meant that the applicant was precluded from raising allegations about anything that had happened prior to November 21, 2014.
6At the hearing, the applicant did not dispute this.
7She said that the current Application relates only to a telephone conversation that took place on December 16, 2014. She said that she included information about the events prior to November 21, 2014 in the current Application because without that information, it was not possible to understand her allegations about the conversation on December 16, 2014.
8The conversation on December 16, 2014 was between the applicant and one of the respondent's Rehab Sales Consultants. The applicant alleges that during this conversation, the Consultant was rude and abusive and told her that she would not be allowed to take her wheelchair with her if she went to Florida as she planned to do. The applicant alleges that the Consultant treated her in a demeaning way because she is a person with a disability and that he made comments about her disability.
9The respondent denies that the Consultant was rude or abusive or treated the applicant in a demeaning way or made comments about her disability. The respondent concedes that the Consultant told her that she could not take her chair to Florida but submits that the reason for this was that the applicant had not signed a Proof of Delivery document when the power base of the chair was delivered to her. The respondent submits that later the same day, this document was signed and the applicant was then able to take the chair out of the country.
Conclusions about the Release
10In regard to the settlement of the previous Application and the Release that was signed by the applicant, it has now been clarified that the present Application is about a conversation something that happened after the Release was signed. While the present Application is related to the earlier Application, the present Application is specific to the conversation on December 17, 2014 and is a new allegation. I conclude that the Release signed by the applicant does not bar her from bringing the current Application. Any damages that might eventually be ordered would be limited to damages arising from the December 17, 2014 conversation and would not include damages for anything that happened before November 21, 2014.
Should the Application be dismissed as having no reasonable prospect of success?
11An assessment of whether an application should be dismissed as having no reasonable prospect of success has two components. The first is whether the things that the applicant alleges, if true, constitute an infringement of the applicant's code-protected rights. The applicant's allegations are generally assumed to be true for the purpose of making this assessment.
12The second component is to determine if there is evidence that is reasonably available that will show that the allegations are true.
13It appears to me that the applicant's allegations about the conversation on December 17, 2014, are primarily allegations of poor customer service. However, they include allegations that the Consultant demeaned her because of her disability and stated that she could not take the chair with her to Florida. The chair is essential for the applicant and if she could not take the chair, she could not go to Florida.
14The question of what actually transpired in the conversation on December 17, 2014, and whether the applicant actually did experience discrimination or harassment during the conversation is a question that could only be answered on the basis of evidence from the participants to the conversation. If the conversation transpired in the manner described by the applicant, it is possible that the Tribunal could find that she experienced an infringement of her Code-protected rights.
15For these reasons, I conclude that the Application should not be dismissed as having no reasonable prospect of success at this time.
16During the hearing, the respondent confirmed that it would agree to try mediation if the Application was not dismissed.
DECISION
17The Tribunal will continue to process the Application, and will schedule a mediation session at the Tribunal.
Dated at Toronto, this 21st day of November, 2016.
"Signed By"
Brian Cook
Vice-chair