Joan Holmes v. City of Toronto, 2016 HRTO 190

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Joan Holmes

Applicant

-and-

City of Toronto

Respondent

DECISION

Adjudicator: David Muir

Date: February 10, 2016

Citation: 2016 HRTO 190

Indexed As: Holmes v. Toronto (City)

APPEARANCES

Joan Holmes, Applicant ) Self-represented

City of Toronto, Respondents ) Darragh Meagher, Counsel

1This is an Application filed pursuant to section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) alleging discrimination in employment on the basis of disability.

2A merits hearing in this case was scheduled for February 5, 2016 in Toronto. However in a Case Assessment Direction issued on January 27, 2016 the in person merits hearing was cancelled and converted to a summary hearing by telephone conference call to hear the parties’ submissions about whether or not this Application should be dismissed in whole or in part because it has no reasonable prospect of success and is untimely.

The Dispute

3In her Application the applicant alleges generally that she is available and willing to work as a Registered Practical Nurse (RPN). The applicant alleges that she has been reclassified as a Customer Service Representative and alleges that she can not be disabled at one job but able to do another. The applicant alleges that there is work available for a RPN and that on two occasions the respondent has called her in to do that work. The applicant alleges that she was called into work on March 4, 2014 but was later told that the call was a mistake and she was not permitted to work. She also alleges that she was called in to work in July 2014 for a block of dates which she agreed to take but was later told that the call was a mistake and the shifts were cancelled.

4In its Response the respondent states that the applicant was injured in a motor vehicle accident in 2006 and has not performed the essential duties of her position since that time. The respondent argued that the calls to come in for shifts made on March 4, 2014 and in July 2014 were made in error and are not violations of the Code.

5The respondent argues that the underlying complaint of the applicant, that she was deemed unable to perform her pre-injury work as a Registered Practical Nurse (RPN), is out of time. In this regard I noted in the January 27, 2016 CAD that one of the documents submitted by the applicant appeared to suggest that the applicant’s ability to safely perform the essential duties of her pre-injury position was assessed in 2011 and it was the respondent’s position at that time or in early 2012 that she could not.

6As indicated above, having reviewed the pleadings of the parties and the documents provided by the parties, particularly those provided by the applicant I directed that a summary hearing be held to determine whether the Application or part of it ought to be dismissed because of essentially two issues:

a. Because the underlying complaint of the applicant that she was deemed to be unable to perform the essential tasks of her pre-injury position in 2011/2012 is out of time;

b. Because the allegations made in the Application, that the applicant was called in to work in her pre-injury position are not incidents of discrimination.

7The summary hearing took place on February 5, 2016 by telephone conference call. Both parties participated and I heard submissions from both.

8For the reasons that follow I find that this Application ought to be dismissed because it has no reasonable prospect of success. I also find that the underlying issue of concern to the applicant, although not really articulated in the Application, was a decision that was made in early 2012 and accordingly is outside of the Tribunal’s jurisdiction to decide because of delay.

9The hearing was held pursuant to Rules 19A.1 and 19A.2 of the Tribunal’s Rules of Procedure which read as follows:

19A.1 The Tribunal may hold a summary hearing, on its own initiative or at the request of a party, on the question of whether an Application should be dismissed in whole or in part on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.

19A.2 Rules 16 and 17 do not apply to summary hearings. The Tribunal may give directions about steps the parties must take prior to the summary hearing, including disclosure or witness statements.

10Details about the nature of a summary hearing were set out as follows in Dabic v. Windsor Police Service, 2010 HRTO 1994, at paras. 8 and 9:

In some cases, the issue at the summary hearing may be whether, assuming all the allegations in the application to be true, it has a reasonable prospect of success. In these cases, the focus will generally be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation.

In other cases, the focus of the summary hearing may be on whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated. Often, such cases will deal with whether the applicant can show a link between an event and the grounds upon which he or she makes the claim. The issue will be whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him or her can show a link between the event and the alleged prohibited ground.

The Delay Issue

11Section 34 (1) and (2) of the Human Rights Code, read as follows:

(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.

12The applicant was injured in a motor vehicle accident in 2006. She suffered some level of impairment and apparently the question of whether or not she could perform the essential duties of her pre-accident position as an RPN arose. As indicated above the underlying decision that the applicant could not be returned to her pre-injury position was made years ago in late 2011 or early 2012. This Application was filed on November 14, 2014 as a consequence of two incidents of the applicant being called in to perform work in error in March and July 2014.

13At the hearing the applicant confirmed that the decision she complains about was made in 2012. She disagreed with the decision at the time and a grievance was filed on her behalf at the time alleging a violation of the collective agreement and the Code. The grievance was subsequently withdrawn by the union. The applicant made a number of submissions about the conduct of the union and their handling of her case. The applicant continues to believe that she can perform the duties of her position as an RPN and cites the fact that she is performing those duties for other employers. She also alleges that other people who are more disabled than her are working for the respondent.

14This aspect of the Application must be dismissed because it is filed well beyond the time limits prescribed in the Code. As indicated the applicant made a number of complaints about the way in which the union has handled her case but the respondent is not responsible for the conduct of the union. Accordingly there appear to be no allegations of discrimination by the respondent as regards the applicant’s claim that she can perform her pre-injury duties. In coming to this conclusion it must be acknowledged that in a general way the obligation of a respondent in these kinds of circumstances may be ongoing but there must be some indication of a change in the employee’s condition and an express request that the respondent reconsider a prior determination in light of the changed circumstances. I also observe that the applicant’s complaints and inquiries of her union do not assist her; the approach must be made to the employer. There is no indication that this is the case here.

No Reasonable Prospect of Success

15The only express allegation in the Application is that on two occasions in 2014 the respondent called her in to perform RPN work and then was sent home. At the hearing the applicant also complained that she was promised payment for these shifts but has never received payment. The respondent asserts that these calls were made in error and when the error was discovered the applicant was sent home.

16At the summary hearing I asked the applicant if she had any evidence that the respondent’s assertion was incorrect and whether she had any other evidence which would tend to show that these calls were discriminatory. The applicant responded by articulating in more detail her underlying complaint above. She also alleged that she had been promised payment for these shifts but was not paid.

17As indicated in the January 27, 2016 CAD the Tribunal does not have the general power to deal with allegations of unfairness. It can only deal with alleged discrimination or harassment on the grounds set out in the Code. To succeed in an Application, an applicant must be able to prove discrimination on the basis of a Code ground on a balance of probabilities. To show discrimination, an applicant must prove a link between a respondent’s alleged actions and a Code ground. Having reviewed the Application and heard the submissions of the parties I find that this aspect of the Application must be dismissed as well because there is no evidence reasonably available to the applicant which would tend to establish that the calls made in 2014 were discriminatory as opposed to being made in error and perhaps unfair to her.

18For all of these reasons the Application is dismissed.