Bubb-Clarke v. Toronto Transit Comm. (No. 1), 2001 CanLII 61048

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 Complaint No. RCHS-3Z8QJY 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 Complaint No. TC003151 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: November 23, 2001

Board File No.: BI-0394/395-01

Decision No.: 01-027-I

APPEARANCES

Ontario Human Rights Commission Anthony P. Griffin

Kevin Bubb-Clarke, Complainant on his own behalf

Toronto Transit Commission, Respondent Angela E. Rae

Amalgamated Transit Union, Local 113, Respondent Susan M. Ursel and Janice Y.S. Chung

1The Respondent, Amalgamated Transit Union, Local 113 (the "Union"), seeks an order of the Board of Inquiry (the "Board") pursuant to section 23 of the Statutory Powers Procedure Act, and section 39(1) of the Ontario Human Rights Code (the "Code"). The Union seeks the following:

(a) An Order dismissing or staying the complaint for failing to disclose a prima facie case;

(b) An Order dismissing the complaint as an abuse of process;

(c) An Order dismissing or staying the complaint for delay and abuse of process;

(d) An Order dismissing or staying the complaint, or portions of it, as not properly before this Board of Inquiry, being an improper expansion of the complaint(s);

(e) Or, in the alternative, an Order striking out pleadings for lack of particulars and for delay;

(f) Or, in the further alternative, an Order for particulars of the pleadings against the Union; and

(g) Such other and further relief as counsel may advise and this Board of Inquiry may deem appropriate.

2The Union is a trade union which represents the employees at the Toronto Transit Commission ("TTC"). By separate complaint, the TTC is the respondent employer. While I am advised that there is a settlement between the TTC and the Ontario Human Rights Commission (the "Commission") and Mr. Kevin Bubb-Clarke, at the moment, the Union is taking the position that I should not see the settlement agreement and to date I have not.

3Mr. Bubb-Clarke (the "Complainant") was, at all relevant times, a member of the bargaining unit represented by the Union. The Complainant was, at all relevant times, an employee of the TTC.

4On April 25, 1996, the Complainant filed an original complaint against both the Union and the TTC alleging violations of the Code, specifically sections 5(1), 6, 9 and 11, alleging that the collective agreement and the seniority regulations between the Union and the TTC had an adverse impact on persons with disabilities because it limits, excludes and restricts those persons from being accommodated in certain positions within the TTC.

5The Complainant alleged in the complaint that:

1. My name is Kevin Bubb-Clarke and I commenced employment with the Toronto Transit Commission as a public vehicle operator on October 21, 1986 and became a member of the Amalgamated Transit Union, Local 113.

2. I worked as an operator until July 17, 1990, when I became sick and booked off work.

3. From October 21, 1990 until June 7, 1991 I worked as a rear door loader for four hours a day and I was paid sick benefits for the time I didn't work.

4. In February 1991 I was diagnosed as having narcolepsy.

5. As a consequence of being diagnosed with narcolepsy, my driver's license was downgraded and I was unable to work as a public vehicle operator.

6. On June 10, 1991 I started working as a Subway Yard Operator at the TTC's Davisville Carhouse.

7. I worked in various maintenance positions (carhouse operator, carhouse helper) through the TTC's Alternate Work Program.

8. On February 18, 1996 I was transferred to Birchmount Division and "laid off."

9. I met with Ron Smale, Superintendent – Transportation and Dave Straw, the Shop Steward. Mr. Smale informed me that due to the Master Sign-Up the maintenance position I had been doing was no longer available to me, that I was still considered a Transportation Department employee, but since my medical restrictions did not allow me to operate a public transportation vehicle, there was no other work available for me. Mr. Smale suggested that I apply for Sick Benefits and that I should apply for other jobs. I was given three months to find another full time position or my employment status would be reviewed.

10. At this meeting I said that my maintenance seniority, accumulated while I was working in the maintenance positions should count for something. Mr. Straw said that there was no system-wide seniority and that my seniority to that date would only count in the Transportation Department.

11. I said that it was asinine to put an able-bodied person on sick benefits.

12. After the meeting, Dave Straw called John Colbary, Executive Board Member on my behalf. I told John what had happened. He promised to look into it.

13. I had a few more discussions with John Colbary, Executive Board Member. He referred me to Vince Casuti, the Vice President of the ATU, Local 113. We spoke on March 4, 1996 and I raised the seniority issue with him. I asked him if my time in maintenance jobs could be credited to me for bidding purposes. He told me that there was no system-wide seniority and my Transportation Department Seniority would not be recognized in the Maintenance Group.

14. I was told by John Iorio, Supervisor – SBA Plan Administration that my application for Sick Benefits was denied on March 1, 1996 because I could not claim for the same disability twice.

15. On March 6, 1996 I contacted Teri Spinola Campbell, Human Rights Coordinator to discuss my situation. Ms Spinola Campbell told me that she would make inquiries after I signed releases authorizing her to access my medical information.

16. On March 7, 1996 I picked up my record of employment from Birchmount Division. It stated that I was laid off due to shortage of work.

17. On March 8, 1996 I called Emily DelPiero, Superintendent of Benefits. She told me that there was no work conducive to my medical restrictions. She asked me if I thought I would be doing alternate work for the rest of my life. I told her that I had seen Gary Andrews in the Placement Office some time in 1993 to explain my situation to him. I told him what I was doing, he said that I should not have been in the maintenance job for more than 3 months, that he would talk to someone higher up, and if I didn't hear from him to keep doing what I was doing. I never heard from Mr. Andrews and I kept working in the Carhouse.

18. On March 26, 1996 Ms Spinola Campbell wrote to Art Patrick, the President of the ATU, Local 113 requesting that the ATU transfer my Transportation Department seniority to the Maintenance Group so that I could bid for a position that would accommodate my disability. In her letter, Ms Spinola Campbell noted that if I did not receive a favourable reply by April 11, 1996 I would file a Human Rights Complaint against the Union.

19. Mr. Casuti called me on April 1, 1996 to update me on a meeting of the Sick Benefit Association in which my claim was discussed and held in abeyance. He said that he had received Ms Spinola Campbell's letter and he felt that it was unfair that she had put all the blame on the union for my situation. He said that it was the TTC's responsibility to accommodate me and that it did not necessarily have to be in a union job. Mr. Casuti told me that he was attempting to have me put into the Collector's group where my Transportation Department seniority would count. I told him that I did not know if I could do the job because I didn't know how it would affect my disability. I told him it was not the job of my choice. I told him that I had began working in maintenance for almost five years and I had been fine there.

20. Mr. Patrick did not reply to Ms Spinola Campbell's letter.

21. On April 22, 1996 Ms Spinola Campbell wrote to Art Patrick, again requesting that the Union allow me to transfer my seniority to the Maintenance Group. She advised him that the TTC was attempting to accommodate me and might have to take whatever steps were necessary including disruption of the seniority system to place me in a job.

22. On April 25, 1996 Ms Spinola Campbell and I met with John Morrison Superintendent, Fare Media – Collectors to discuss the duties and responsibilities of a Collector's position and our respective concerns regarding my ability to do the job. Mr. Morrison arranged for me to spend a day with a Collector to see what the job involves so that I could make an informed decision about my accommodation.

23. The Collector's position is not my first choice for accommodation. It would require me to work in an enclosed area which could aggravate my narcolepsy. The Union would prefer me to take this job, as it would resolve the seniority issue for them. I prefer to be accommodated in a position similar to one I had for the last five years, but I can not be placed in such a job without losing my ten years of seniority.

24. I am a person with narcolepsy and I believe that my right to equal treatment with respect to my employment without discrimination because of handicap has been infringed by the above-named Respondents in contravention of Section 5(1) and Section 9 of the Human Rights R.S.O. 1990 C. H. 19.

25. I believe that the Collective Agreement and the Seniority Regulations between the Amalgamated Transit Union, Local 113 and the Toronto Transit Commission has an adverse impact on persons with disabilities because it limits, excludes and restricts those persons from being accommodated in certain positions within the TTC in contravention of Sections 5(1), 6, 9, and 11 of the Human Rights Code R.S.O. 1990 c.H. 19.

[Emphasis added.]

6It is clear from the emphasized portions that even as far back as the original complaint in 1996, the Complainant was asking that the Transportation Department seniority be transferred to the Maintenance Group; in other words, to follow him to other departments where the transfer is because of his disability.

7Two and a half years later, on or about October 29, 1998, the Respondent received an amended complaint from the Commission. The amended complaint stated:

1. I am a person with an Handicap and I believe that my right to equal treatment with respect to employment without discrimination because of my handicap has been infringed by the above cited respondents, contrary to Sections 5(1) 9 and 11 of the Ontario Human Rights Code, R.S.O. 1990, Chapter H.19 as amended. I believe this for the following reasons:

   (a) On or about October 21, 1986 I began employment with the Toronto Transit Commission (TTC) as a public vehicle operator.

   (b) In or around February, 1991 I was diagnosed with Narcolepsy. This resulted in the downgrading of my driver's license making me unable to perform the duties of a public vehicle operator.

   (c) On or about June 10, 1996 I started working as a Subway Yard Operator at the Davisville Carhouse. This was followed by assignment to a variety of maintenance positions through the TTC's Alternative Work Program.

   (d) On or about February 18, 1996 I was transferred to the Birchmount division and laid off.

   (e) I met with Superintendent-Transportation and with a local Shop Steward and was advised that the maintenance position was no longer available and that my seniority was with the Transportation Department.

   (f) I stated at this meeting my belief that my seniority from the Transportation Department should count for something. I was advised that there is no system wide seniority per the Collective agreement.

   (g) On or about March 7, 1996 I picked up my Record of Employment which stated that I had been laid off due to shortage of work.

   (h) On or about March 8, 1996 I called the Superintendent of Benefits who advised me that there was no shortage of work and asked if I would be doing alternative work for the rest of my life. I told her that I had advised personnel in the Placement Office of my situation some time in 1993. I continued to work in the Carhouse.

   (i) On or about March 26, 1996 the Human Rights Coordinator of the TTC wrote to the local union Vice President requesting that my Transportation Department seniority be transferred to the Maintenance Group. This was not effected by either party.

   (j) On or about April 25, 1996 I met with the Human Rights Coordinator for the TTC and with the Superintendent, Fare Media – Collections to discuss the duties and responsibilities of a Collector's position. In such a position my Transportation seniority would remain intact. I expressed my concerns about my ability to do the job with my handicap. It was arranged by the Superintendent, Fare Media for me to spend a day with a Collector to see what the job involves so that I could make an informed decision about such an accommodation.

   (k) The Collector's position is not my first choice for accommodation. It requires working in an enclosed environment which could aggravate my Narcolepsy. I believe that the appropriate accommodation is into a position similar to the one I have been doing for the last five years, with my seniority intact.

   [Emphasis added.]

8On August 31, 2000, the Union provided its full written submissions and position in respect of the complaint. On October 16, 2000, final case analysis was provided to the Union recommending that the case be sent to the Commission for review and recommending that the Commission refer the subject matter of the complaint to a Board of Inquiry.

9Mr. Griffin, in response to my question as to what the Commission and Mr. Bubb-Clarke are seeking if they are successful, stated that the Board should find that:

1. Mr. Bubb-Clarke should, when he is transferred because of his disability, take his seniority with him.

2. All persons transferred because of disability should not lose their accumulated seniority because of the transfer.

10As I have noted and emphasized, from the time of the original complaints, it has been known that Mr. Bubb-Clarke was complaining of the loss of the Transportation seniority when he transferred to another section because of his disability. In my view, the issues are clear. Is Mr. Bubb-Clarke and any member of the Union who becomes disabled adversely discriminated against by not being allowed to take his accumulated seniority with him? In relation to that issue, no facts in the Bubb-Clarke case are in dispute. Accordingly, if there are particulars to which the Union is entitled, they can be accommodated without dismissing or staying the complaint. That is all that is necessary to consider the Union's motion.

11I deal, however, with some of the other aspects. The Union argues that no prima facie case has been made out. In my view, the issues as previously defined plus the facts as set out in the original complaint establish a prima facie case.

12In the end, the complaint was referred to the Board on January 18, 2001, referring the amended complaints of October 29, 1998 against both the Union and the TTC.

13Both the TTC and the Union have been aware of the following since March of 1996:

1. Mr. Bubb-Clarke originally worked as a transit operator, in the Transportation Group, from 1986 to 1990.

2. Mr. Bubb-Clarke was diagnosed with narcolepsy. The TTC indicated that his medical restrictions "precluded him from performing operators' and collectors' duties".

3. Through the TTC's Alternate Work Program, Mr. Bubb-Clarke performed jobs, but not in the Transportation Group, from 1991 to 1996.

4. Mr. Bubb-Clarke's seniority from the Transportation Group was not transferable outside the Transportation Group, because of the terms of the collective agreement.

15Mr. Bubb-Clarke's narcolepsy prevented him from performing his original job. The TTC recognized this in its March 26, 1996 letter to the ATU, in which it wrote as follows:

. . . In July 1991, and again in June 1993, Mr. Bubb-Clarke was found fit with permanent medical restrictions which included no night shift work and no driving outside TTC property. These restrictions precluded him from performing operators' and collectors' duties.

. . . Because there is no system-wide seniority system at the TTC, Mr. Bubb-Clarke was unable to bid for a regular position in the Maintenance Group which would accommodate his disability. . . .

. . . Mr. Bubb-Clarke needs his Transportation Department seniority transferred to the Maintenance Group so that he may bid for work which accommodates his disability.

16To respond to the case against them, the Union may attempt to prove undue hardship in the accommodation sought or may rely on any of the other defences open to them. The issues, however, are clear and there is no evidence of permanent prejudice to the Union's ability to bring evidence and argue their position.

17The Union argues that the pleadings expand the inquiry. The pleadings refer to the impact of the collective bargaining agreement on Mr. Bubb-Clarke, the very essence of the 1996 and 1998 complaints. If particulars are needed (I do not believe they are), they can be ordered.

18The Union's position is also that the issues expanded by having the order asked for applicable to other Union members in the future.

19Section 41 of the Code allows the Board to make orders in respect of future practices. It is not reasonable to expect that each employee affected in a similar way to Mr. Bubb-Clarke should have to make a new complaint. Even if the decision was relative to Mr. Bubb-Clarke alone, it would set a precedent or an arguable position with regard to the collective agreement, as presently worded, for the benefit of future Union members and employees.

20The Union also argues that there is no monetary loss alleged and that the evidence of Mr. Bubb-Clarke bidding for 40 or 50 positions should not be accepted as the bid sheets have been lost.

21To succeed, the Complainant and the Commission do not have to establish monetary loss. (Ontario Nurses' Association v. Orillia Soldiers Memorial Hospital (1999), 1999 CanLII 3687 (ON CA), 42 O.R. (3d) 692 (C.A.)). In that case, the collective agreement provided that seniority was lost after a fixed period of absence. There was no allegation in the agreed statement of fact that any union member had suffered any monetary loss. However, the Ontario Court of Appeal found for the complainants and found that the provision did not apply to disabled nurses. However, the provisions, as is suggested in our case, were effective as against Union members with no disability. In any event, the loss of the bid sheets may go to the weight of the evidence or even its admissibility, but its relevance is to remedy and not to the prima facie case.

22I have carefully considered the other arguments made by the Union. Having done so, I am not convinced that there is anything that will prevent a fair hearing of the issue as to whether or not Union members transferring from one division to another because of disability should be allowed to take their seniority with them. Accordingly, the motion is dismissed and we will proceed with the hearing on the dates allocated for that purpose.