BOARD OF INQUIRY (Human Rights Code)
IN THE MATTER OF the Human Rights Code, R.S.O. 1990, c. H.19, as amended;
AND IN THE MATTER OF a complaint by Kevin Bubb-Clarke, amended October 29, 1998, alleging discrimination with respect to membership in a trade union because of handicap by the Amalgamated Transit Union, Local 113;
AND IN THE MATTER OF a complaint by Kevin Bubb-Clarke, amended October 29, 1998, alleging discrimination in employment because of handicap by the Toronto Transit Commission;
AND IN THE MATTER OF Board of Inquiry File No. BI-0394/395-01
B E T W E E N:
Ontario Human Rights Commission
-and-
Kevin Bubb-Clarke
Complainant
-and-
Toronto Transit Commission
and Amalgamated Transit Union, Local 113
Respondents
INTERIM DECISION
Adjudicator: Alvin B. Rosenberg
Date: December 19, 2001
Board File No.: BI-0394/395-01
Decision No.: 01-029-I
Board of Inquiry (Human Rights Code)
505 University Avenue
2nd Floor, Toronto, ON M5G 2P3
Phone (416) 314-0004 Toll free 1-800-668-3946 Fax: (416) 314-8743
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A P P E A R A N C E S
Ontario Human Rights Commission ) Anthony P. Griffin
Mr. Kevin Bubb-Clarke, Complainant ) on his own behalf
Toronto Transit Commission, Respondent ) Angela E. Rae
Amalgamated Transit Union, ) Susan M. Ursel and
Local 113, Respondent ) Janice Y.S. Chung
The Respondent, Amalgamated Transit Union, Local 113 (the "Union"), seeks an order adding the Toronto Transit Commission (the "TTC") to a complaint by Kevin Bubb-Clarke (the "Complainant"), amended October 29, 1998, alleging discrimination with respect to membership in a trade union because of handicap.
BACKGROUND
The original complaint and the amended complaint were against both the TTC and the Union as one complaint. The Ontario Human Rights Commission (the "Commission") decided to separate the two complaints and, accordingly, had new complaints executed – one against the TTC and one against the Union. When the Commission referred the matter to the Board of Inquiry (the "Board"), they combined the two complaints for the purpose of the hearing. However, in my view and the view of counsel, there still remain two separate complaints to be heard together for the purpose of convenience because many of the issues and facts were the same.
There are a number of other issues, but the major issue is whether or not when the Complainant because of his disability transfers from one department of the TTC to another, he can take his seniority with him. The collective agreement between the Union and the TTC does not provide for the transfer of the seniority from the Transportation Division to the Maintenance Division, which the Complainant transferred to because of his disability.
It appears that the TTC was prepared to allow for the transfer of all seniority and that the Union was not.
On October 16, 2001, the Complainant, the Commission and the TTC entered into what was entitled Minutes of Settlement which included a Release which was attached as Appendix "A". I attach both the Minutes of Settlement and Appendix "A" to this interim decision as Appendix 1.
The Board has the jurisdiction to add the TTC upon such terms as the Board considers proper, if the TTC appears to have infringed the right of a complainant. (Ontario Human Rights Code, R.S.O. 1990, c. H.19 as am., ss. 39(2)(d) and (3); Thornton v. North American Life Assurance Co. (No. 1) (1992), 1991 CanLII 13125 (ON HRT), 16 C.H.R.R. D/162 (Ont.Bd.Inq.): paras. 32-33,38; Walter Hyman v. Southam Murray Printing and International Brotherhood of Teamsters, Local 419 (1981), 1981 CanLII 4307 (ON HRT), 3 C.H.R.R. D/617 (Ont.Bd.Inq.): paras. 5644-5646).
The Board has the authority to add the TTC to the complaint since the TTC has sufficient notice and opportunity and is, therefore, not prejudiced. In this case, the TTC had knowledge of the complaint from the outset. (Leroux v. Ontario (Human Rights Comm.) (1999), 1999 CanLII 15059 (ON CTGD), 35 C.H.R.R. D/338 (Ont.Ct. (Gen.Div.)): paras. 29-33; Bahjat Tabar and Chong Man Lee v. David Scott and West End Construction Limited (1982), 1982 CanLII 4887 (ON HRT), 3 C.H.R.R. D/1073 (Ont.Bd.Inq.): paras. 9456-9461).
Normally, an employer is a necessary party to proceedings before the Board where there is an allegation that a contract which it has entered into has infringed the right of an employee. It does not matter that the term of the contract is "mandatory". (Thornton, supra, paras. 44,47).
The terms of the collective agreement are being challenged in this case, insofar as they refer to persons with handicaps in the position of the complainant and, normally, both parties to the collective agreement would be responding parties to provide a complete legal scenario. Both parties in this case were respondents, initially, and both parties have a duty to avoid discrimination. (Thornton, supra, para. 45; O.P.E.I.U., Local 267 v. Domtar Inc. (1990), 1990 CanLII 12500 (ON HRT), 12 C.H.R.R. D/161 (Ont.Bd.Inq.) para. 73; conf'd (1992), 1992 CanLII 7512 (ON CTGD), 16 C.H.R.R. D/479 (Ont.Div.Ct.) paras. 22-23). It has been held that an "employer cannot escape responsibility for ensuring a fair employment environment, both in fact and in law". (Thornton, supra, para. 50).
The Union also argues that there are conceivable circumstances where the Union might wish to claim over against the TTC and that, therefore, they require that the TTC be a party. The Union also argues that at the end of the hearing, there may be grounds for an award, jointly and severally, against the Union and the TTC, and this can only be effective if the TTC is a party.
DECISION
The question of joint and several liability does not arise. These proceedings are adversarial and both the TTC and the Commission and Mr. Bubb-Clarke agree that no joint and several remedies or awards will be asked for. Further, the Union has not alleged any facts that would entitle them either to indemnity or contribution from the TTC and these proceedings are some five years old and there has been ample opportunity in the pleadings to make any such allegations.
One factor that distinguishes this case from the Thornton case is that, in this case, the TTC, the Commission and the Complainant, object to the TTC being added. In Thornton, the complainant did not object to adding the employer. In my view, there is also an important policy consideration. The TTC has settled to the limit of its ability to settle. This type of settlement, approved by the Commission and accepted by Mr. Bubb-Clarke, should be encouraged. If the Union were successful in adding the TTC, the settlement would have little, if any, effect.
While it is conceivable that at the end of the day there could be a decision against the TTC that would be unenforceable because the TTC is not a party, this should not be a concern of the Union. The Commission and the Complainant have agreed that no such claim will be made and so far as the Union is concerned, this does not prejudice them. Accordingly, the motion to add the TTC as a party is dismissed.
Dated at Toronto, this 19th day of December 2001.
"Alvin B. Rosenberg"
The Honourable Alvin B. Rosenberg, Q.C.
Member