Tjernqvist v. Mary Berlund Community Health Centre Hub, 2017 HRTO 1362

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Erika Tjernqvist

Applicant

-and-

Mary Berlund Community Health Centre Hub

Respondent

INTERIM DECISION

Adjudicator: Yasmeena Mohamed

Date: October 16, 2017

Citation: 2017 HRTO 1362

Indexed as: Tjernqvist v. Mary Berlund Community Health Centre Hub

APPEARANCES

Erika Tjernqvist, Applicant

Self-represented

Mary Berlund Community Health Centre Hub, Respondent

Mellissa Seal, Counsel

INTRODUCTION

1The applicant filed an Application alleging discrimination in employment because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). Specifically, the applicant alleges that the respondent created a poisoned work environment, failed to address her accommodation needs, and terminated her employment because of her disability.

2This Interim Decision determines whether the Tribunal should dismiss the applicant's Application on a preliminary basis because another proceeding has appropriately dealt with the substance of the Application and/or because the Application has no reasonable prospect of success.

Facts as alleged in the Application

3The applicant commenced employment with the respondent in October 2015 as a Nurse Practitioner. In and around January 2016, the applicant had amassed a backlog with respect to updating and recording her patients' medical information on the respondent's Electronic Medical Records ("EMR") system.

4On March 3, 2016, following discussions with the respondent in regards to her backlog, the applicant disclosed to the respondent that she had a disability, namely ADHD, and that she would require accommodation to assist with the backlog. The applicant alleged that the respondent requested a medical note to verify her disability and instead of engaging in any discussions about her potential accommodation needs, the respondent provided her with a laptop and directed her to work from home. According to the applicant, she subsequently referred the respondent to various written resources about her disability in the hopes of initiating discussions about her accommodation needs, but the respondent ignored her efforts in this regard.

5The applicant alleged that, on March 10, 2016, the respondent accused her of being absent without prior authorization and accessing and changing patient records without consent. The applicant alleged that she informed the respondent that she was absent on account of being sick and that she had accessed and changed patient records without consent to highlight that other health care providers were not updating their medical records in the EMR system as well. The applicant alleged that notwithstanding her explanation, the respondent terminated her employment.

6The applicant alleged that the termination is discriminatory because the respondent carried it out after she disclosed her disability and to avoid engaging in accommodation discussions with her.

Respondent's Response

7The respondent alleged that its response to the applicant's disclosure of her disability and termination was justified under the circumstances and not discriminatory. The respondent alleged that it had been engaged in meetings and discussions with the applicant since January 2016 with respect to her growing backlog on the EMR system. According to the respondent, March 3, 2016 was the first time the applicant disclosed she had a disability requiring accommodation for the backlog. The respondent alleged that it requested a medical note to determine the appropriate accommodation of the applicant. In the interim, it provided the applicant with a laptop and directed her to work from home, both of which the applicant had requested to deal with her growing EMR backlog issues.

8The respondent alleged that, on March 10, 2016, it discovered that the applicant had taken a leave of absence without prior authorization and had reviewed and changed the medical records of patients without their consent (misconduct). The respondent submits that the applicant admitted having engaged in the misconduct and as a result, it terminated her employment.

9The respondent requested that the Tribunal dismiss the Application because the Ministry of Labour appropriately dealt with the substance of the Application and/or the Application has no reasonable prospect of success.

Ministry of Labour Proceeding

10The applicant filed a claim to the Ministry of Labour under the Employment Standards Act, 2000, S.O. 2000, c. 41 (the "ESA"), for overtime pay and termination pay. An Employment Standards Officer ("ESO") dismissed the claim on September 8, 2016. The issue before the ESO was whether the applicant was disentitled to the claimed payments because she was guilty of wilful misconduct.

11A hearing was held and the ESO decision noted that the applicant had claimed that her employment was terminated because of her disability, overtime hours, and reprisal. The applicant claimed that after she had disclosed her disability and requested accommodation the respondent terminated her employment.

12The ESO's decision noted that the respondent had claimed the applicant was terminated because she had viewed and changed the electronic medical records of several patients whom she had not seen or was not scheduled to see. The ESO's decision also noted that the applicant confirmed that she had reviewed those medical records without consent, but claimed that it was done to show the respondent that its medical records were not being appropriately updated.

13The ESO determined that the applicant knew or ought to have known that looking at patient files without authorization would amount to misconduct. Therefore, the ESO concluded that the termination of the applicant was for "wilful misconduct" and accordingly dismissed the claim. The ESO specifically did not address the applicant's claim that she was terminated because she disclosed her disability and requested accommodation. On this point the ESO stated as follows:

The claimant also claims that the termination was because she told the employer of her disability and of the need to be accommodated. This is not an entitlement under the ESA, 2000.

PRELIMINARY HEARING

14A teleconference hearing was convened to hear the parties' submissions on whether the Application ought to be dismissed in whole or in part under section 45.1 of the Code or as having no reasonable prospect of success.

15For the reasons that follow, I find that the ESO decision did not appropriately deal with the substance of the Application within the meaning of section 45.1 of the Code. The respondent's request that the Application be dismissed under section 45.1 of the Code is accordingly denied. I also find that the Application cannot be dismissed at this stage as having no reasonable prospect of success.

Analysis

Has the Ministry of Labour proceeding appropriately dealt with the substance of the Application?

16Section 45.1 of the Code states:

The Tribunal may dismiss an Application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the Application.

17Section 45.1 requires a two-part analysis: (1) whether there was another "proceeding" and, if so, (2) whether it "appropriately dealt with the substance of the Application": Campbell v. Toronto District School Board, 2008 HRTO 62.

18There is no question that an application before the ESO is a "proceeding" within the meaning of s. 45.1 of the Code. As a result, the remaining issue is whether the substance of the human rights Application was appropriately dealt with in the other proceeding.

19The respondent asserts that the applicant's disability-related allegation was appropriately dealt with by the ESO. I disagree. As noted above, the ESO specifically declined to consider the applicant's disability-related allegations on the basis that there was no entitlement to make such allegations under the ESA.

20The respondent further asserts that allowing the applicant to proceed with her disability-related allegations would compel the Tribunal to hear evidence on the reasons for the termination, which has been heard and appropriately dealt with by the ESO's decision.

21I agree with the respondent that the ESO held that the applicant engaged in wilful misconduct that disentitled her to benefits under the ESA. Accordingly, I conclude that the applicant cannot challenge the misconduct aspect of the termination before this Tribunal. However, it is open to the applicant to seek to establish that, notwithstanding the established misconduct, her disability and/or requests for accommodation also played a role in the respondent's decision to terminate her employment. See Daginawala v. SCM Supply Chain Management, 2010 HRTO 205 at paras. 23-24.

22For all of these reasons, I find that the Ministry of Labour proceeding did not deal with the substance of the Application, except only to the extent outlined in paragraph 21, above.

Should the Application be dismissed as having no reasonable prospect of success?

23Rule 19 A.6 of the Tribunal's Rules of Procedure provides that the Tribunal need not provide reasons when it decides not to dismiss the Application as having no reasonable prospect of success following a summary hearing. In this case, it suffices to say that, in order to determine the applicant's claim that she was subject to a poisoned work environment and that her disability and/or requests for accommodation were factors in the termination of her employment, the Tribunal must hear evidence in a hearing on the merits.

ORDER

24For the above reasons, the respondent's request to dismiss the Application at this stage is denied and the Application will continue in the Tribunal's process.

25In this regard, I note that the parties have indicated that they are interested in mediation. The Tribunal will schedule a mediation date in the normal course.

26I am not seized.