HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Zareena Husain Applicant
-and-
Centre for Addiction and Mental Health, Ontario Nurses’ Association and Philip Klassen Respondents
INTERIM DECISION
Adjudicator: Mary Truemner Date: April 14, 2016 Citation: 2016 HRTO 483 Indexed as: Husain v. Centre for Addiction and Mental Health
APPEARANCES
Zareena Husain, Applicant Self-represented
Centre for Addiction and Mental Health, Respondent Carolyn Kay, Counsel
Ontario Nurses Association, Respondent Kate Hughes, Counsel
Phil Klassen, Respondent Jennifer McKendry, Counsel
Introduction
The Application
1This Application, filed January 26, 2015, alleges discrimination with respect to employment because of race, colour, ancestry, place of origin, ethnic origin, disability, sex, sexual solicitation, age, association and reprisal contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).
2In answer to the question on the Application which asks “What happened”, the applicant wrote an extremely lengthy answer. Much of what is in the pages of her narrative appears to be context, but the applicant wrote that her employer, Centre for Addiction and Mental Health (“CAMH”), discriminated against her because of many grounds, from the time that she began working in 2008 until the time that she stopped actively working in 2010. She also described in her narrative that her efforts to return to work after her last day of active work were blocked by CAMH because of Code related grounds.
3One of the allegations described in the Application appears to pertain to CAMH’s refusal to recognize qualifications or experience of the applicant that would allow her an increase in pay if they had been obtained in Canada. She alleges that they were not recognized as justification for an increase because they were obtained in the United States. Below I have reproduced the applicant’s exact wording describing this discrepancy:
Additionally, despite several ongoing requests be paid for "Recent and Related work experience" and educational bonus (Local Issue Collective Agreement addendum-Appendix3, Appendix 109 40.49 and Appendix 4 Superior conditions my rate of pay was not as per Collective agreement and I was being given the "run around" by […an employee in the] CAMH human resource department. This was despite providing her with the various paper work she requested- including my US income tax returns.
She also disbelieved that I had management experiences, doubted my qualifications and told me that I must be mistaken by saying I had a Masters degree, it must be a certificate. She checked the name of the facilities on the computer during our discussions and continued to question me. She then asked that I produced "something to show I worked full time". I had difficulty getting the verification and produced the US income tax returns she requested. She then said "full time" was not indicated there. I continued to provide her with any whatever paperwork I had in my possession as well as the correspondences to my past employers in the US to get the information. I eventually provided all the information that I received and still did not receive the monies as per the C.A.
I subsequently produced my Masters Certificate obtained from Bellevue University. Even then, she refused to honour the education credit and appropriate pay rate. At some point during my being off, after the union's involvement and my continued request she stated I was at my appropriate rate of pay even though to date Appendix 4 has not been honoured and later stated by correspondence that upon my return to work the issue will be looked into...
4The narrative also states that the respondent, the Ontario Nurses Association of Ontario (“ONA”), filed several grievances on the applicant’s behalf, at least one dealing with accommodation of the applicant’s disability, and another with respect to long-term disability (“LTD”) benefits. The narrative states that they misrepresented her, lied to her, and made deals without her permission. CAMH terminated the applicant’s employment in the summer of 2014. ONA again filed a grievance with respect to the termination that was scheduled to go to a hearing on December 4, 2014, but the applicant informed ONA that she would not attend because she was afraid that ONA would not represent her “adequately”.
5The Application also appeared to characterize the denial of LTD benefits as discrimination by CAMH when it settled a grievance that ONA had filed on the applicant’s behalf. The applicant alleges ONA and CAMH settled without her permission. She wrote, “… they have settled without my permission again going against my wishes and being complicit with the discrimination and violation of my human rights… I would like to know my rights in terms and options in terms of accepting/not accepting this cheque as partial payment for the outstanding amount and the ONA is telling me it is a done deal.”
6In the context of at least one grievance, ONA and CAMH apparently insisted on an independent medical examination (“IME”) of the applicant that was conducted by the personal respondent, Dr. Klassan, a psychiatrist who the Application alleges made inappropriate comments, suggesting that the applicant slept with her regular psychiatrist. The Application also refers to Dr. Klassan having made some “sexually suggestive comment” when the applicant worked with him during the 1980’s, but it appears that her allegations are with respect to her dissatisfaction with ONA and CAMH not recognizing that Dr. Klassan should not have been examining her given conflict, particularly because he was too connected with CAMH to be objective.
7The applicant summarized her allegations in the “What happened” section of the Application as follows:
In summary, The Hospital [CAMH], ONA and Dr. Klassen have discriminated against me and have breached confidentiality many times and engaged in sweetheart deals, resulting in an unjust termination from the hospital.
8It appears that the applicant is particularly upset with ONA for having agreed to settle her grievance regarding termination on terms that she did not accept.
The Case Assessment Direction for Preliminary Hearing
9A Case Assessment Direction (“CAD”) was issued, directing that there be a preliminary hearing to deal with several issues:
Whether some or all of the Application should be dismissed because the allegations are untimely.
Whether the substance of this Application has been considered and appropriately dealt with in another legal proceeding, specifically the Interim Award of Arbitrator Randall dated May 5, 2014 and Award of Arbitrator Randall dated March 17, 2015, and the Memorandum of Settlement dated September 15, 2014. Accordingly, there is an issue of whether the Application should be dismissed in whole or in part pursuant to s. 45.1 of the Code.
Whether the Application may be an abuse of process because the respondent Centre for Addiction and Mental Health and the respondent Ontario Nurses’ Association entered into a Memorandum of Settlement dated September 15, 2014 pertaining to part of the Application, as well as the Interim Award and Award issued by Arbitrator Randall.
Whether the Application should be dismissed as having no reasonable prospect of success. It provided the following as an explanation for inquiring into the matter:
a. It appears that the applicant may be unable to prove that there is a connection between what the respondents are alleged to have done, and the grounds of race, colour, ancestry, place of origin, citizenship, disability, sex (including sexual harassment), sexual solicitation, age, and reprisal cited in the Application. That is, although the applicant may believe that the conduct of the respondents is connected to the ground, it is not clear that there is evidence available to the applicant to prove the connection. The focus of this inquiry is on the evidence the applicant has or may be able to obtain;
b. The issue the applicant is raising does not appear to fall under the Code. The focus of this inquiry is on the legal basis for the applicant’s claim and whether or not there is any reasonable prospect the allegations may amount to a Code violation;
c. The Tribunal has held that it does not have the power to review decisions under benefit programs, including those based on disability, to determine if they are correct under the legislation, regulations, or policies governing the program; and,
d. The reprisal section of the Code, section 8, only applies to the actions of a respondent that are intended as a reprisal for any of the following: (1) claiming or enforcing a right under the Code; (2) instituting or participating in proceedings under the Code; or, (3) refusing to infringe the right of another person under the Code… To proceed with the Application, there must be a reasonable basis to believe that the applicant could establish the respondent reprised against him or her for one of these three things.
The preliminary hearing
10The preliminary hearing was held on November 27, 2016. The applicant was given an opportunity to address the issues identified in the CAD and to explain exactly what she meant to pursue as allegations of Code violations and why.
11For the most part, the preliminary hearing was essentially a summary hearing dedicated to providing the applicant with an opportunity to explain exactly what she meant to pursue as allegations of Code violations in order that the Tribunal might assess whether there was no reasonable prospect of success for those allegations as discussed in the CAD. Given the applicant’s fatigue, the Tribunal advised the parties that any allegations which were not dismissed as having no reasonable prospect of success, or for being clearly out of time, would be scheduled for a continuation date of the preliminary hearing so that the parties might address the other issues identified in the CAD. This Interim Decision dismisses all of the allegations of reprisal and discrimination against the respondents, except the allegations against CAMH of discrimination because of disability.
analysis
12Rule 19A.1 of the Tribunal’s Rules of Procedure states 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.
13In Dabic v. Windsor Police Service, 2010 HRTO 1994, the Tribunal made the following comments about summary hearings, at paras. 8-9:
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.
Allegations related to Sex (Gender), One Intersecting with Race
14With respect to her allegations related to the ground of sex, the applicant explained at the preliminary hearing that the first incident of discrimination because of sex occurred in approximately 2009-2010 when a labour relations officer for ONA interviewed her and said she was “a malingerer” because he did not believe her story about how CAMH was treating her. The applicant could not point to any evidence that her sex was the reason for the comment. Without any sign of evidence to support this allegation, I find that it has no reasonable prospect of success, and dismiss it without commenting on whether it is an isolated incident out of time, or part of a series of incidents within time.
15The applicant then described a meeting with counsel for ONA who she alleges spoke rudely to her. She alleges that he would not have talked the same way to a White man. She admitted that his comments themselves were not sexist or racist, and that “he stopped being racist and sexist” to the applicant in 2012. Without commenting on the apparent untimeliness of this allegation as well, the applicant pointed to no evidence that could support her theory that ONA’s counsel would have spoken differently to her if she had been a man and/or White. Without evidence, I find that this allegation has no reasonable prospect of success.
16The third allegation related to sex is that the supervisor of ONA’s counsel (described above) met with the applicant and told her, “You have to have a reason to get out of bed in the morning other than getting back at the ONA,” and that she had a chip on her shoulder. The applicant believes that he would not have made the comments if she had been a man, but pointed to no evidence to support her belief. Without evidence, I find that the allegation with respect to these comments has no reasonable prospect of success and it is dismissed.
Allegation related to Sexual Solicitation
17The applicant explained that her allegation of sexual solicitation relates to Dr. Klassen’s psychiatric assessment of her in July of 2013. She alleges that he asked her a lot of questions in relation to the psychiatrist who was providing care to her. She alleged that Dr. Klassen also said that he was surprised that she was married for so long. She argued that this comment suggests that he meant that she was having a sexual relationship with her psychiatrist. Then she said that she had proof he was “coming on” to her because he later asked why she didn’t want him as a psychiatrist instead. She argued that this question suggests sexual solicitation.
18I do not see how the applicant will be able to establish that Dr. Klassen sexually solicited her on the basis of the above comments and questions. Talking about a patient’s marriage and therapy in the context of conducting a psychiatric assessment is to be expected. I find too remote to be reliable the applicant’s theory that what is suggested by Dr. Klassen’s alleged comment about the duration of her marriage is his belief that she was having a sexual relationship with her psychiatrist. Suggesting that she consider becoming his patient instead is also too remote from establishing a sexual solicitation by him. Dr. Klassen’s comments and questions do not suggest sexual solicitation to me, and without more evidence, I find that the applicant’s theory of what they meant has no reasonable prospect of establishing sexual solicitation. Therefore, without commenting on the apparent untimeliness of the allegation against Dr. Klassen, I dismiss the allegation of sexual solicitation.
Allegations related to Age
19The applicant was born in 1958. She explained that she believes that if she had been younger, CAMH would have offered a higher amount of money in settling her grievance involving the denial of long-term disability benefits. She believes that CAMH relied upon her age to guess that she would be forced to settle for a low amount because she would have been afraid that she was too old to get another job, and, desperate for the money, accept their offer. She has no evidence to support her theory.
20Without evidence, I find that the allegation with respect to alleged age discrimination has no reasonable prospect of success and it is dismissed.
Allegations related to Citizenship
21The applicant is a citizen of both Canada and the United States. She explained at the preliminary hearing that she went to CAMH’s human resources department in 2009 to take advantage of their policy to increase pay in recognition of previous full time experience. She submitted the required paperwork, but human resources personnel were not satisfied that her work as a nurse in the United States had been full-time. She was required to provide her income tax returns from the United States to supplement her application for the increase. She explained that her paperwork already established that she had worked full-time; therefore, she argued, human resources was unreasonable, and it must have been because the applicant was American. The only evidence to which the applicant referred to prove her theory was her experience that American employers never asked for income tax returns to establish previous full-time experience.
22I don’t see that there is any possibility that what American documents an American employer might rely upon to justify an increase in pay would establish a reasonable standard for what the respondent might request in order to process the claim for a salary increase. I dismiss the allegation of discrimination because of citizenship as it relates to the applicant’s claim that her pay should have been higher on the basis of previous experience, or that any disability benefits or payments should have been higher if they had been based on a higher pay.
Further Allegations Related to Race, Colour, Ancestry, Place of Origin
23The applicant identified herself at the preliminary hearing as Brown and from Guyana with South Asian ancestry.
CAMH
24The applicant explained that she observed CAMH treating White men differently than racialized women.
25She identified this practise in the Emergency Room where she worked in 2010. Given that the Application was filed in 2015 and section 34(1) of the Code requires someone to file an application within one year of the incidents alleged to be discriminatory unless a delay was incurred in good faith, the applicant agreed that allegations related to those months in the Emergency Room might be dismissed because they are out of time, and she has no good faith reason for filing them late. The allegations as they relate to the applicant’s active work in the Emergency Room are therefore dismissed for delay.
26The applicant explained that she also felt that personnel in the Human Resources Department treated her at meetings differently from White people, although she had never observed personnel at meetings with White people that were similar to the meetings that she had. The applicant pointed to no evidence to prove that how she was treated was related to her race, colour, ancestry, ethnic origin and place of origin, and I find that there is no reasonable prospect of success for the applicant to prove discrimination on these grounds. Also, the applicant agreed that the allegedly racist treatment from Human Resources ended in 2012, and her delay in filing the Application three years later was not incurred in good faith.
27Given that the applicant pointed to no other allegations related to these grounds against CAMH, the allegations of discrimination with respect to race, colour, ancestry, ethnic origin and place of origin as they relate to CAMH are therefore dismissed.
ONA
28With respect to ONA, the applicant explained that she felt that those who worked at ONA, and who were assigned to litigate her grievances, treated her differently on the basis of her race, colour, ancestry, ethnic origin and place of origin. In particular, she described her interactions with the ONA counsel. She focused on the same meeting as described above in paragraphs 14 and 15 addressing allegations of discrimination because of sex, referring again to a counsel’s rudeness and his alleged comment that the applicant had a chip on her shoulder. Again, while the applicant believes that the comment would not have been made if she had been a White, she pointed to no evidence to support her belief. Without evidence, I find that the allegation with respect to the comment, and the counsel who allegedly made it, has no reasonable prospect of success and it is dismissed without comment on whether it is an isolated incident out of time, or part of a series of incidents within time.
29When she complained about her treatment by counsel to the president of ONA in 2012, a woman from the president’s office appears to have telephoned her to discuss her concerns. The applicant explained that the woman was rudely dismissive of her concerns, and that she rudely accused the applicant of taping the conversation. The applicant argued that the woman would have treated her differently if she were White, but pointed to no evidence to support the allegation. Rudeness unrelated to a ground in the Code is something over which the Tribunal has no power. Without any sign of evidence to support this allegation that rudeness was linked to a Code ground, I find that it has no reasonable prospect of success, and dismiss it without comment on whether it is an isolated incident out of time, or part of a series of incidents within time.
30In conclusion, all allegations related to the grounds of race, colour, ancestry, ethnic origin and place of origin.
Allegation of Discrimination Related to Association
31The applicant withdrew her allegation of discrimination because of association at the preliminary hearing.
Allegation of Reprisal
32The applicant explained at the preliminary hearing that her allegation of reprisal for asserting her human rights under the Code is against ONA only. The allegation is based on how she saw counsel at ONA behave in 2012 after she told them in 2011 that she was considering complaining to the Human Rights Tribunal about CAMH. She said that when she first began talking about going to the Tribunal, ONA counsel became more active in doing something about her grievances against CAMH, but the subsequent pressure to have an independent medical examination (“IME”) appeared to her to be punishment. She had already been seen by her family doctor and her psychiatrist, and she had had enough of doctors.
33At that stage in the preliminary hearing, we looked at Tab 92 of CAMH’s Book of Documents which was an Order dated February 23, 2012 in which the arbitrator orders the applicant to undergo an IME. When I asked the applicant its bearing on her allegation that ONA counsel was reprising against her, she stated that she did not know about his motivations for wanting her to have an IME, but that “it delayed things”. She admitted that she could not prove that ONA was reprising against her. Without any evidence to support her allegation of reprisal, and in the circumstances where the arbitrator ordered an IME, I see no reasonable prospect of success for this allegation against ONA.
34Similarly, while the applicant wondered if the pressure ONA put on her to settle her grievance might have been reprisal for asserting her rights under the Code, she had no evidence to support such an allegation. Without any evidence to support such an allegation, I see no reasonable prospect for it to succeed.
35Again, without commenting on the timeliness of the allegations of reprisal against ONA, I dismiss them.
Allegations Relating to Disability
36The applicant explained at the preliminary hearing that she has several allegations of discrimination because of disability, all against CAMH.
37The first allegation involves CAMH’s refusal to accommodate her alleged need, arising from her disability, for certain shifts from September to December, 2009. (She agrees that she was incapable of working for a period of time after December 2009 for medical reasons). In terms of the last four months of 2009, however, there appears to be some evidence that the parties included in their filed documents, and that they referenced at the preliminary hearing, that may demonstrate that CAMH failed in its duty to accommodate the applicant. Consequently, this allegation will not be dismissed as having no reasonable prospect of success, but there remains the issues identified in the CAD of whether this allegation must be dismissed under s.34(1) of the Code as untimely; dismissed under s.45.1 because another proceeding has appropriately dealt with the subject matter of the proceeding; or dismissed as an abuse of process.
38The second allegation of discrimination because of disability involves CAMH’s refusal to allow the applicant to return to work after she went on leave for medical reasons in 2010, even when she provided medical documentation clearing her to return. The applicant explained that she could not remember the exact times that she was cleared by her doctor(s) to return to work with modifications, but not permitted to do so by CAMH. She stated that in November 2012, CAMH would not accept her doctor’s recommendation that she be returned to work, taking the position that they first needed results from the insurer. She argued that CAMH was unnecessarily delaying her return to work. She did not point to a more recent time of CAMH refusing to allow her to return to work.
39Given the alleged medical evidence, I cannot see that there is no reasonable prospect of success for this second allegation, and it will not be dismissed on that basis. There remains, however, the issues identified in the CAD of whether this allegation must be dismissed under s.34(1) as untimely; dismissed under s.45.1 because another proceeding has appropriately dealt with the subject matter of the proceeding; or dismissed as an abuse of process.
40The third allegation of discrimination because of disability is that CAMH terminated the applicant’s employment because of her disability on April 11, 2013. At the preliminary hearing, the applicant explained that according to the paperwork from Occupational Health, CAMH had decided that they would not accommodate the applicant even before receiving her medical documents. She also explained that a doctor told her that CAMH did not want her to return to work because she cannot work in acute care or in an intense patient environment. She argued that CAMH should have allowed her to work in an outpatient clinic or a less intense inpatient environment.
41I find that with the above referenced evidence, it is arguable that there is some reasonable prospect for this allegation to succeed. Again, while it will not be dismissed as having no reasonable prospect of success, there remain the issues identified in the CAD of whether this allegation must be dismissed under s.34(1) of the Code as untimely; dismissed under s.45.1 because another proceeding has appropriately dealt with the subject matter of the proceeding; or dismissed as an abuse of process.
summary of dismissed allegations
42All allegations in the Application are dismissed as against ONA and the personal respondent.
43All allegations in the Application are dismissed as against CAMH with the exception of the allegations of discrimination because of disability as described above.
Directions to the applicant and CAMH
44The Tribunal will schedule a one-day preliminary hearing at which the parties will have an opportunity to make submissions with respect to whether the remaining allegations (as described above in the disability section of this Interim Decision) should be dismissed under s.34(1) of the Code as untimely; dismissed under s.45.1 because another proceeding has appropriately dealt with the subject matter of the proceeding; or dismissed as an abuse of process. Any submissions related to these issues must be filed by the respondent within 21 days, and by the applicant within 45 days.
45There may also be a need for a hearing of evidence at the preliminary hearing. In the event that a party is concerned that the documents contained in CAMH’s Book of Documents (two volumes) is incomplete or is not acceptable as accurately representing the timing or description of events, any party may also bring to the hearing any witness to testify about the events or whether any delay by the applicant in filing the Application was incurred in good faith, but may only do so if the party files with the Tribunal and delivers to the other party, at least 30 days in advance of the next preliminary hearing date, a witness statement for each witness, (including the applicant). The witness statement must describe what the intended evidence of that witness will be, and if the applicant plans to give evidence by testifying, she must also provide a witness statement for herself.
46Similarly, any party who intends to refer to a document not contained in CAMH’s Book of Documents (two volumes), may only do so if that document has been shared with the other party and filed at the Tribunal at least 30 days in advance of the next preliminary hearing date.
next step for tribunal
47The Tribunal will schedule a one-day preliminary hearing.
48Any communications, directions, orders or decisions from the Tribunal in the future will not name ONA and the personal respondent, nor be sent to them, unless any request to intervene by them is granted.
Dated at Toronto, this 14th day of April, 2016.
“signed by”
Mary Truemner Vice-chair