CITATION: Sugiono v. Human Rights Tribunal (Ontario), 2016 ONSC 3705

DIVISIONAL COURT FILE NO.: 89/14 DATE: 20160602

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

DAMBROT, STEWART and PARAYESKI JJ.

BETWEEN:

Jeane Ernes Sugiono Applicant

– and –

Human Rights Tribunal (Ontario); Centre for Early Learning-Seneca Hill Respondents

Nicholas Owodunni, Matthew Tubi for the Applicant Linda H-C Chen for Human Rights Tribunal (Ontario) Ben Aberant for Centre for Early Learning-Seneca Hill

HEARD at Toronto: June 2, 2016

DAMBROT, J (ORALLY)

[1] On November 28, 2013, after a two-day hearing, the Human Rights Tribunal (Ontario) (“HRTO”) dismissed the applicant, Jeane Sugiono’s allegation that the respondent Centre for Early Learning-Seneca Hill discriminated against her when it failed to reasonably accommodate her disability in accordance with the Human Rights Code, R.S.O. 1990 c.H.19, as amended (the “Code”). The HRTO found that the respondent had attempted to accommodate the applicant but that she had failed in her obligation to participate in a cooperative accommodation process. The applicant’s request for reconsideration of the dismissal was denied.

[2] In this application for judicial review, the applicant argued that the adjudicator erred in law in failing to recognize that the accommodation offered by the employer did not take into account the specific disability of the applicant. This argument misses the point. After summarizing the evidence in some detail, the adjudicator found at paragraph 42 to 44 of the decision:

[42] Whether a respondent took adequate steps to explore an employee’s accommodation needs and to assess accommodation options is determined on a case-by-case basis and depends, amongst other things, on the particular circumstances of the respondent. In this case, the evidence establishes that the respondent tried very hard to accommodate the applicant by finding out her limitations and by then corresponding with her respecting the duties she would perform when she returned to work, the accommodations the respondent would make for her such as giving her a chair to sit on, giving her breaks in the classroom as needed and having her not lift greater than her capacity. However, the applicant did not attend the workplace to try.

[43] The jurisprudence regarding the substantive aspect of the duty to accommodate indicates that an employer is not required to fundamentally change working conditions, but must arrange an employee’s workplace or duties to enable the employee to do his or her work, if such arrangements can be made without undue hardship.

[44] I find that the respondent did not fail in its duty to reasonably accommodate the applicant, and her termination did not breach the Code because it was related to the applicant’s intransigence and not her disability. Accordingly, the Application is dismissed.

[3] In coming to this conclusion, the adjudicator stated at paragraph 33: “I find that the respondent tried to accommodate the applicant but was significantly hampered in their ability to do so.” The adjudicator found that the applicant did not fulfil her obligation to participate in the accommodation process, which is a collaborative process.

[4] The adjudicator made no error of law and reached an entirely reasonable conclusion, amply supported by the evidence.

[5] We also considered the other arguments raised in the applicant’s factum but not pursued in her oral argument but see no merit in any of them.

[6] Finally, we see no error in the reconsideration decision dated January 17, 2014.

[7] The application is dismissed.

COSTS

[8] I have endorsed the application record as follows: “Application dismissed, for oral reasons delivered in Court today. Costs to Centre for Early Learning fixed at $5,000 payable forthwith, all inclusive.”

___________________________ dambrot J.

stewart J.

parayeski J.

Date of Reasons for Judgment: June 2, 2016 Date of Release: June 9, 2016

CITATION: Sugiono v. Human Rights Tribunal (Ontario), 2016 ONSC 3705 DIVISIONAL COURT FILE NO.: 89/14 DATE: 20160602

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

DAMBROT, STEWART and PARAYESKI JJ.

BETWEEN:

Jeane Ernes Sugiono Applicant

– and –

Human Rights Tribunal (Ontario); Centre for Early Learning-Seneca Hill Respondents

ORAL REASONS FOR JUDGMENT

DAMBROT, J

Date of Reasons for Judgment: June 2, 2016 Date of Release: June 9, 2016