Rector v. Greater Sudbury (City), 2016 HRTO 1538

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Tammy Rector

Applicant

-and-

City of Greater Sudbury

Respondent

DECISION

Adjudicator: Mark Hart

Date: November 30, 2016

Citation: 2016 HRTO 1538

Indexed as: Rector v. Greater Sudbury (City)

APPEARANCES

Tammy Rector, Applicant

Cheryl MacKinnon, Paralegal

City of Greater Sudbury, Respondent

Mireille Khoraych, Counsel

1This is an Application filed on October 13, 2015, alleging discrimination with respect to employment 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 physical disability. She commenced employment at Pioneer Manor on October 23, 2006, as a health care aide. Pioneer Manor is a residential care home for adults with long-term health care needs operated by the respondent City.

3In brief, the Application alleges that the applicant experienced a long history of workplace bullying and harassment by certain co-workers and supervisors during the period from March 2011 to February 2014, and that management at Pioneer Manor failed to take appropriate steps to address the workplace bullying and harassment. There is scant evidence in the material filed with the Tribunal to connect the alleged workplace bullying and harassment to the applicant’s disability. The applicant commenced a leave of absence from the workplace on February 25, 2014, and her employment was ultimately terminated on September 30, 2014.

4By Case Assessment Direction dated February 18, 2016, this Tribunal directed a preliminary hearing in this proceeding to address the following issues: (1) whether the Application should be dismissed for delay; (2) whether all or any part of the Application should be dismissed as having no reasonable prospect of success; and (3) whether the personal respondents named in the Application should be removed.

5The preliminary hearing proceeded before me by teleconference on May 31, 2016, at which time I heard oral submissions from the parties on these issues. I also have reviewed and considered all material filed by the parties with the Tribunal for the purpose of the preliminary hearing.

6At the preliminary hearing, the applicant took no issue with the removal of the personal respondents. As a result, all personal respondents have been removed as parties to this proceeding and the title of proceeding has been amended accordingly.

7Pursuant to s. 34(1) of the Code, an application to this Tribunal is to be filed within one year after the incident to which the application relates or, if there was a series of incidents, within one year after the last incident in the series. Accordingly, I will first address those allegations of a violation of the Code that are alleged to have occurred within or at least close to the one-year period to determine whether any of them have a reasonable prospect of success. I will then turn to address the issue of delay.

Reasonable prospect of success

8There are two alleged incidents of discrimination which occurred within or at least close to the one-year period prior to the filing of the Application on October 13, 2015: (1) an allegation that the respondent discriminated against the applicant because of disability by interfering with her ability to collect Employment Insurance (“E.I.”) benefits; and (2) an allegation that the respondent discriminated against the applicant because of disability in terminating her employment at Pioneer Manor.

9At some point following the termination of her employment at Pioneer Manor, the applicant applied for E.I. benefits. These benefits were denied by decision dated May 26, 2015. A copy of the decision denying the applicant’s E.I. benefits was not submitted as part of the material for the preliminary hearing, but I understand from the applicant that her E.I. benefits were denied because of a decision that her employment had been terminated for misconduct. The applicant requested reconsideration of this decision in early July 2015, and her E.I. benefits were granted by decision dated July 30, 2015.

10I note that the Application as filed does not actually allege that the respondent interfered in a discriminatory manner with the applicant’s ability to obtain E.I. benefits. Rather, at para. 59, the Application merely asserts as a fact that the applicant applied for and was denied E.I. benefits, which was subsequently appealed and a decision made in her favour on July 30, 2015. I also note that the Application as filed cites the last incident of discrimination as being on October 17, 2014, which is what the applicant understood to be the date of termination of her employment.

11However, in response to the respondent’s request for dismissal of the Application for delay, the applicant’s representative wrote to the Tribunal by letter dated February 8, 2016, to allege that the denial of E.I. benefits was an incident of discrimination and unfair treatment towards the applicant. No request was made to amend the Application to allege the denial of E.I. benefits as an act of discrimination by the respondent. Nonetheless, for the purpose of this Decision, I am prepared to consider whether this allegation has a reasonable prospect of success.

12There is nothing in the material before me to substantiate a claim that the respondent interfered with the applicant’s ability to claim E.I. benefits because of discrimination due to disability. The respondent stated at the preliminary hearing, and there is nothing to contradict this, that it was contacted by Service Canada to provide the letters leading to the termination of the applicant’s employment, and provided letters dated September 12 and 30, 2014 (discussed in detail below). There is nothing in these letters to support that the respondent discriminated against the applicant because of disability; rather, the letters state that the applicant’s employment was terminated due to her failure to provide documentation to support her leave of absence from work and due to her failure to report for work as directed. And there is nothing before me to indicate that any representative of the respondent spoke with anyone at Service Canada regarding the termination of the applicant’s employment, which is denied by the respondent.

13Whether or not to grant E.I. benefits is a decision made by Service Canada, not by the respondent, on the basis of the governing legislation, namely the Employment Insurance Act, S.C. 1996, c. 23. To the extent that any initial decision to deny benefits was based on a finding of misconduct, there is nothing in the material before me to indicate that this decision was based on anything other than the letters provided to Service Canada. After the applicant appealed, this initial decision was overturned and her E.I. benefits were granted.

14In my view, in these circumstances there is nothing before me to support that the respondent played any role in the initial decision by Service Canada to deny E.I. benefits to the applicant, and no basis to support any allegation that the respondent discriminated against the applicant because of disability by providing the termination letters to Service Canada, as it was requested and required to do. As a result, I find that the allegation that the respondent discriminated against the applicant because of disability by interfering with her ability to obtain E.I. benefits has no reasonable prospect of success, and this allegation is therefore dismissed.

15The second allegation of discrimination because of disability relates to the termination of the applicant’s employment by the respondent. As stated above, the applicant commenced a leave of absence from work on February 25, 2014. The material before me indicates that the respondent sent a letter to the applicant dated March 18, 2014, stating that it had been advised by its sickness benefits provider that the applicant’s sick leave claim remained pending. The applicant was requested to provide the sickness benefits provider with medical documentation supporting her absence. A further letter was sent to the applicant by the respondent dated June 27, 2014, noting that her sick leave claim was still pending, and requested that she provide to the sickness benefits provider the additional medical documentation required by the sickness benefits provider to support her claim. The applicant did not comply with this request.

16As a result, a further letter was sent to the applicant by the respondent dated July 17, 2014, noting that her sick leave claim was still pending and that she had failed to provide the required documentation. The applicant was notified that her manager and human resources coordinator would be advised that she is not eligible for sick leave due to her failure to provide objective medical documentation supporting her absence, and that the applicant would be regarded as being absent from work without leave effective August 8, 2014 if she failed to contact the respondent to discuss her options or a return to work.

17A further letter was sent to the applicant dated September 12, 2014, noting that the applicant was considered to be on an unapproved absence from work due to her failure to provide objective medical documentation to support her absence. This letter records the numerous unsuccessful attempts by the respondent and the sickness benefits provider to contact the applicant, both by letter and by phone, during the period from March to July 2014. The respondent advised the applicant that in these circumstances, she was expected to return to work on September 18, 2014. If the applicant failed to return to work, she was advised that she would be considered absent without leave and after five consecutive days her employment would be terminated in accordance with Article 16:06 of the collective agreement.

18The applicant did not report for work on September 18, 2014, or thereafter. At the preliminary hearing, the applicant acknowledged that she had commenced other employment in July 2014, where she remained for approximately one year. This was not known to the respondent. On September 30, 2014, the respondent sent a final letter to the applicant advising her that to date, there had been no communication received from her and she had not returned to work as directed. As a result, given that the applicant had been absent without leave in excess of five consecutive working days, the applicant was advised that her seniority rights under the collective agreement had ceased and her employment was terminated effective September 30, 2014, in accordance with Article 16:06 of the collective agreement.

19The respondent takes the position in this proceeding that, as the Application was filed on October 13, 2015, more than one year following the termination of the applicant’s employment, any allegation of discrimination in relation to the termination of her employment is untimely. The applicant acknowledges that she received the March 18, 2014 and June 27, 2014 letters from the respondent, but denies receiving the subsequent letters, including the letter terminating her employment effective September 30, 2014. The explanation for this is because the applicant may have moved her place of residence during this period. There is no dispute that the applicant did not inform the respondent regarding any new address.

20The applicant states that she was not aware that her employment had been terminated until she was provided by Service Canada with the record of employment issued by the respondent on October 17, 2014. This record of employment indicated March 2, 2014 as the last day for which the applicant was paid, but does not specifically set out the date of termination of her employment. There is no dispute that the applicant took no steps to ascertain from the respondent the date of termination of her employment.

21In my view, it is unnecessary to address this allegation in relation to whether or not it is timely. The fact remains that the applicant’s employment was terminated due to her failure to provide the required medical documentation to support her ongoing absence from work, her failure to respond to the telephone calls and letters that she did receive, her failure to notify the respondent regarding any change in her address, and the ultimate termination of her employment in accordance with the provisions of the applicable collective agreement due to her failure to report for work for five consecutive working days. Whether or not the applicant received the September 2014 letters, there is nothing in the material before me to indicate that the applicant was unable to return to work for the respondent for any disability-related reason. Indeed, this is belied by the fact that she was working elsewhere at the time. Nor is there anything in the material to support that the applicant was unable to respond to the repeated requests for medical support for her absence due to any disability-related reason.

22The applicant states that in June 2014, she had a telephone discussion with someone at Pioneer Manor during which she says she stated that she would return to work once they provided her with a safe working environment. She alleges that her employment was terminated not in accordance with the collective agreement, but because the respondent would rather get rid of her than correct the problem in the workplace. In my view, this is mere speculation unsupported by any evidence in the material before me. The correspondence from the respondent is quite clear as to the basis for the termination of the applicant’s employment, and there is nothing before me to contradict this.

23As a result, I find that the allegation that the respondent discriminated against the applicant because of disability in relation to the termination of her employment has no reasonable prospect of success, and this allegation is therefore dismissed.

Delay

24As stated above, section 34(1) of the Code requires that an application be filed within one year of the last alleged incident of discrimination. In determining the last alleged incident of discrimination, this Tribunal will not have regard to allegations that have been determined to have no reasonable prospect of success: see Chappell v. Securitas Canada Limited, 2012 HRTO 874; Garland v. Canada-CPS, 2012 HRTO 1309; Reiner v. Sarnia (City), 2014 HRTO 498; Groh v. Waterloo (Regional Municipality), 2014 HRTO 1774; and Mozafarian v. Saint Elizabeth Health Care, 2016 HRTO 784.

25As a result, given my findings above, the last alleged incident of discrimination as set out in the Application dates from February 11, 2014, which is one year and eight months prior to the filing of the Application on October 13, 2015. Even if I were to consider the applicant’s telephone call with someone at Pioneer Manor in June 2014 in which she says that she stated that she would return to work if provided with a safe working environment as an alleged act of discrimination, even though any such allegation is not set out in the Application as filed, this event still occurred some one year and four months prior to the filing of the Application.

26As the most recent incident of an alleged violation of the Code is outside the one-year period, the issue of delay arises and I need to consider whether the delay was “incurred in good faith” within the meaning of s. 34(2) of the Code.

27The onus is on an applicant under s. 34(2) of the Code to satisfy this Tribunal that the delay in filing an application was incurred in good faith. This requires that the applicant provide some reasonable explanation for the delay: Imrie-Howlett v. Peel District School Board, 2009 HRTO 1339. In Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241, this Tribunal held that an applicant is required to show something more than simply an absence of bad faith. In Miller, above, it was held that the one-year time limit is consistent with the policy objective that human rights claims should be dealt with expeditiously, and requires an applicant to act with due diligence when they seek to pursue a human rights claim.

28The only real explanation provided for the delay in filing the Application is a submission at the preliminary hearing that the applicant was experiencing health issues. While the Tribunal accepts that a delay may be in good faith because of an applicant’s disability, it has consistently ruled that it requires medical evidence that any disability was so debilitating as to prevent an applicant from pursuing her legal rights under the Code in a timely manner: see for example, Reid v. Ontario March of Dimes, 2009 HRTO 2207; Downer v. Little & Jarrett, 2010 HRTO 992; Savage v. Toronto Transit Commission, 2010 HRTO 1360; Dionne v. Toronto (City), 2011 HRTO 317.

29There is simply nothing in the material before me to support that the applicant experienced this level of disability during the relevant time period from February 2014 to October 2015. Indeed, during this time period, the applicant was able to work at alternative employment at least from July 2014 for about a one-year period. While the applicant states that she was under the care of a psychiatrist from September 2014 to October 2015, no medical reports or documentation were filed regarding the level or seriousness of any mental health issue that she was experiencing, and there is no evidence that any such mental health issue was so debilitating as to prevent her from being able to file her Application.

30The applicant relies upon this Tribunal’s decision in M.C. v. London School of Business, 2015 HRTO 635. In that case, there was medical evidence before the Tribunal that the applicant was hospitalized and suicidal at the time the one-year period expired. In the instant case, the applicant acknowledges that she was not hospitalized in or about February 2015 or June 2015 and she was not suicidal at that time, although she states that she was being treated for anxiety. The applicant submitted at the preliminary hearing that dealing with the subject matter of her Application was something that would have triggered her anxiety and depression. However, there is no medical evidence to support this, and no explanation as to why she was unable to file her Application in February or June 2015 but was able to do so in October 2015. This is simply an insufficient basis to establish that any disability was so debilitating as to prevent the Application from filing her Application in a timely manner, such that her delay in doing so can be regarded as having been in “good faith” as that term has been interpreted by this Tribunal.

31In my view, the real reason the Application was filed when it was is based upon the applicant’s mistaken belief that her employment with the respondent had been terminated on October 17, 2014, such that she believed she had until October 17, 2015 to file her Application. While that may be understandable, the fact remains that the applicant’s allegation of discrimination arising as a result of the termination of her employment has been dismissed as having no reasonable prospect of success, such that this event cannot be relied upon as the last alleged incident of discrimination.

32As a result, I find that the applicant has not satisfied me that the delay in filing her Application was incurred in “good faith” within the meaning of s. 34(2) of the Code. Accordingly, it is not necessary for me to consider whether any substantial prejudice is caused to the respondent as a result of the delay.

33For these reasons, the remainder of the allegations raised in the Application are dismissed for delay.

ORDER

34The Application is dismissed in its entirety for delay and/or as having no reasonable prospect of success.