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;
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
DECISION
Adjudicator: The Honourable Alvin B. Rosenberg, Q.C.
Date: April 4, 2002
Board File No.: BI-0394-01
Decision No.: 02-006
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
TTY: (416) 314-2379 TTY Toll free: 1-800-424-1168
A P P E A R A N C E S
Ontario Human Rights Commission ) Anthony P. Griffin, Counsel
Kevin Bubb-Clarke, Complainant ) on his own behalf
Amalgamated Transit Union, ) Susan M. Ursel and
Local 113, Respondent ) Janice Chung, Counsel
Toronto Transit Commission ) Angela E. Rae, Counsel
ISSUE
Although there are many subsidiary issues, the major determination to be made is whether or not the Amalgamated Transit Union, Local 113 (the “Union”) was in breach of the Ontario Human Rights Code (the “Code”), R.S.O. 1990, c. H.19, as amended, by refusing to accommodate Mr. Kevin Bubb-Clarke by allowing him to accrue seniority for all of the time that he has been employed by the Toronto Transit Commission (the “TTC”).
After the first few days of hearing, Mr. Griffin and Ms. Rae advised that the Commission and Mr. Bubb-Clarke and the TTC had entered into Minutes of Settlement. However, since the Minutes of Settlement provided that the TTC did not oppose certain types of orders that might be made by me, I did not have the Minutes of Settlement implemented until the release of my decision, but advised Ms. Rae that there was no need for her to attend the continued hearings and she did not.
THE FACTS
Most of the facts are not in dispute. Mr. Bubb-Clarke himself testified and was cross-examined. Where his evidence differs from that of other witnesses, I accept his evidence.
In over 55 years of observing witnesses, I have never encountered a more credible witness. When asked a question, Mr. Bubb-Clarke answered the question and did not argue. He did not stop to try to anticipate what argument his answer might support. He did not attempt to counter any adverse inferences that might arise from his answer. Witnesses and counsel would be well advised to consider his example. It affects their credibility when asked a question that has an obvious answer when, instead of an affirmative reply, they choose to argue against the implications that could arise from that reply. Some witnesses and counsel go further and repeat earlier arguments in what appears to be an attempt to obscure the impact of the answer to the question.
Mr. Bubb-Clarke commenced work at the TTC on October 21, 1986, as an operator of a public vehicle in the TTC’s Transportation Division. He accrued seniority as an operator, in accordance with the provisions of the collective agreement between the TTC and the Union.
Mr. Bubb-Clarke remained in the position of operator – first as a street car driver, and then as a bus operator at the Birchmount division of the TTC until July 17, 1990, at which time he commenced a sick leave as a result of a medical condition that was not yet diagnosed.
In October 1990, Mr. Bubb-Clarke returned to work, assuming the position of Rear-door Loader at the Russell Division. He remained classified as an Operator, working part-time and receiving supplementary sickness benefits.
In February 1991, Mr. Bubb-Clarke was diagnosed with narcolepsy, which resulted in the downgrading of his driver’s licence. It was determined by the TTC’s medical department that, based upon the medical evidence, restrictions would be placed upon the work available to Mr. Bubb-Clarke: that he not work nights, and that he not drive TTC vehicles off TTC property.
From 1991 to February 1996, since Mr. Bubb-Clarke could no longer perform his regular duties, he was assigned to a variety of positions in the Maintenance Division, as opposed to the Transportation Division:
(a) He performed rear-door loading assisting passengers, from October 1990 to June 1991;
(b) He worked at Davisville – subway yard (or carhouse) as an operator helper at Davisville station training, from June 1991 until the closure of Davisville yard, at which time the employees from Davisville moved to the Wilson Carhouse;
(c) He worked in Maintenance at Wilson Carhouse.
Seniority that accrued while holding a position or positions within the Transportation Division and seniority that accrued while holding a position or positions within the Maintenance Division are not mutually transferable under the relevant collective agreement between the TTC and the Union.
On or about Wednesday, February 13, 1996, Mr. Bubb-Clarke’s supervisor showed him an interoffice memo addressed to the supervisor, but concerning Mr. Bubb-Clarke, which indicated that Mr. Bubb-Clarke should see Ron Smale, the superintendent of Transportation at Birchmount. The memo indicated that a job should be found for Mr. Bubb-Clarke within the Transportation Division, and that if one were not found Mr. Bubb-Clarke would be required to take a sick leave. Accompanied by a shop steward from the Union, Mr. Bubb-Clarke attended a meeting with Mr. Smale on February 18, 1996. At this meeting, Mr. Smale stated that there was no job for Mr. Bubb-Clarke and that his Transportation seniority could not be transferred to Maintenance. Mr. Smale suggested that Mr. Bubb-Clarke apply for sick benefits and watch for job postings.
Mr. Bubb-Clarke did not wish to take sick leave. He was capable of performing the job he occupied at that time and other jobs at the TTC. Mr. Bubb-Clarke was not provided with an explanation of why the job he had been performing no longer existed. On that same date, February 18, 1996, Mr. Bubb-Clarke was sent home.
Subsequent to this meeting, Mr. Bubb-Clarke kept in contact with John Colbarry, a member of the Union’s Executive for Birchmount, who indicated that he was attempting to find work for Mr. Bubb-Clarke. According to Mr. Colbarry, the problem was that Mr. Bubb-Clarke had no Maintenance seniority and, therefore, could not bid for a Maintenance position. Mr. Bubb-Clarke received a Record of Employment approximately three weeks later, back-dated to February 18, 1996, indicating that he had been laid off for lack of work. After receiving his Record of Employment, Mr. Bubb-Clarke contacted John Casuti, the Vice President of the Union. Mr. Casuti told Mr. Bubb-Clarke that nothing could be done “due to the seniority regulations. That’s just the way it is”. (Note: Mr. Casuti has since become President of the Union and testified at the hearing.)
In 1993, Mr. Bubb-Clarke was contacted by Gary Andrews of the TTC’s Personnel department, who indicated that Mr. Bubb-Clarke was not supposed to be accommodated in positions such as the one he was holding for more than a few months. Mr. Andrews advised Mr. Bubb-Clarke that he would have to confer with superiors, and that if Mr. Bubb-Clarke did not hear from him, he could carry on in his job. Mr. Bubb-Clarke did not hear back from Mr. Andrews.
While Mr. Bubb-Clarke wished to work, rather than take sick leave, in view of the fact that he had been laid off he applied for sick benefits. His application was denied. He appealed and the application has been held in abeyance.
Mr. Bubb-Clarke contacted the human rights coordinator for the TTC, Ms. Terry Spinola-Campbell, who wrote a letter to the President of the Union, on Mr. Bubb-Clarke’s behalf, requesting that the Union transfer his Transportation seniority to the Maintenance Group, so that Mr. Bubb-Clarke could bid for a position in that unit.
On April 1, 1996, Mr. Bubb-Clarke was contacted by Mr. Casuti, who stated that it was the responsibility of the employer to ensure a proper accommodation, and that he was attempting to secure a job for Mr. Bubb-Clarke in the Collector Group. Mr. Bubb-Clarke was concerned that the job of a Collector, done in a seated position, would trigger an episode of narcolepsy. Mr. Bubb-Clarke asked both the Union and the TTC for assurances that no adverse consequences to him would result should he take the job of Collector, and should it in fact prove incompatible with his medical condition, but no such assurances were forthcoming.
The option of working as a Collector had been discussed when Mr. Bubb-Clarke was diagnosed with narcolepsy. The TTC personnel were of the view that the position was unsuitable in view of Mr. Bubb-Clarke’s medical condition.
On April 22, 1996, Ms. Spinola-Campbell wrote again to the President of the Union concerning the transfer of Mr. Bubb-Clarke’s seniority, indicating that the TTC was prepared to accommodate Mr. Bubb-Clarke, and was prepared to disregard the pertinent seniority provisions in the collective agreement for that purpose. The TTC was prepared to grant Mr. Bubb-Clarke seniority for all of his time employed by the TTC.
With no other options available to him, on April 25, 1996, Mr. Bubb-Clarke met with management personnel to discuss the duties of the Collector position. It was agreed that he would spend a day in the position in order to make an informed decision as to whether to apply for the position. After spending an afternoon with a Collector, performing the job functions, Mr. Bubb-Clarke remained of the view that he might have episodes of sleeping, should he take the position. He was particularly concerned because of the public safety functions associated with the position of Collector and, accordingly, did not apply for the position. (Note: Mr. Bubb-Clarke has settled with the TTC and part of the settlement is compensation in monetary terms for the period that he was laid off and compensation in seniority terms for the period that he should have been working. The lay-off was caused by an error of the TTC and is not a consideration with regard to the claim against the Union.)
Approximately three months after Mr. Bubb-Clarke was sent home from work, he was contacted by a member of the Union Executive, who indicated that if he wished a job as a subway janitor, he could attend a general membership meeting of the Union, at which time a motion would be made to attribute Maintenance seniority to him. Mr. Bubb-Clarke attended the meeting, the motion was carried, and Mr. Bubb-Clarke was given seniority in the Maintenance Division, dating from 1992, which was the period during which Mr. Bubb-Clarke had been working in the Maintenance Division.
Mr. Bubb-Clarke returned to work at the TTC on May 13, 1996, where he remained, in the capacity of subway janitor, until February 19, 1999. (At that time Mr. Bubb-Clarke was obliged to leave work for medical reasons unrelated to the condition of narcolepsy.)
Mr. Bubb-Clarke has been working as a subway janitor since 1996. He has applied for, and bid for, other jobs, which he would have preferred, for monetary and other reasons. Some of the jobs that he would have preferred are in other subdivisions of the Maintenance Division. Because of the practice of the bidding process, the other subdivisions’ jobs are first bid for by members working in that particular subdivision. For these reasons, Mr. Bubb-Clarke admitted that he cannot say that even if he had full seniority he would have been able to bid successfully on any of the jobs that he preferred. Accordingly, no claim was made against the Union for damages for loss of higher income that might have been achieved. The claim for general damages is based on the Union’s refusal to allow Mr. Bubb-Clarke system-wide seniority for all purposes and for the frustration of some 5-1/2 years of being deprived of appropriate seniority and feeling that he has lost jobs because of this lack of seniority.
CLAIM
On behalf of Mr. Bubb-Clarke, the Commission counsel claims the following:
An order that the Union credit Mr. Bubb-Clarke with seniority for total years of service, active or otherwise, starting from the date he commenced employment with the TTC.
General damages in the amount of $22,000.
A declaration that the seniority provisions of the collective agreement providing for the non-transferability of seniority from one Division to another violate Mr. Bubb-Clarke’s right to equal treatment without discrimination based upon disability.
An order that the TTC and the Union cease applying the provisions of the collective agreement that prohibit transferability of seniority from one Division of the TTC to another in the case of individuals who change Divisions as a result of a disability.
PRELIMINARY MOTIONS BY THE UNION
The Union made preliminary motions at the outset of the hearing: firstly, that the claim be dismissed in its entirety; and, secondly, that the TTC be added as a respondent. For reasons set out in my interim decisions at the time, both preliminary motions were dismissed.
OVERVIEW OF THE ARGUMENTS
Mr. Griffin, counsel for the Commission, argued that in a case such as Mr. Bubb-Clarke’s where the transfer is because of a disability, the neutral rule becomes discriminatory to people, such as Mr. Bubb-Clarke, who must leave their original job because of the disability. He argued that having established that the restriction on transferability in cases like Mr. Bubb-Clarke left him working in Maintenance starting with zero seniority and putting him at a serious disadvantage, the Union could only justify the provisions if, as the Code requires, it could show that accommodation has been given to the point of undue hardship. He argued that the Union has not done this and, in fact, has produced no evidence with regard to any hardship that would be created by granting Mr. Bubb-Clarke seniority for all of the time that he has been employed at the TTC.
Ms. Ursel, on behalf of the Union, on the other hand, argued that the Commission’s case was built on an “assumption” and a “guess”. She argued that the “assumption” was that the seniority system is a factor causing harm to Mr. Bubb-Clarke. She expressed the view that this was not so, that an assessment of a number of choices made by Mr. Bubb-Clarke indicated that any harm that he suffered was as a result of those choices. She posed the question whether Mr. Bubb-Clarke was entitled to be insulated from all the consequences of his own choices. She stated that the question was, should he receive a perfect accommodation or a reasonable one. She argued that the available accommodation as a Collector would have insulated Mr. Bubb-Clarke from the non-transferability provisions of the collective agreement, that such a solution was reasonable and that he turned it down. She referred to the “guess” as being, “that changing the seniority system will not cause undue hardship”. She argued that, in fact, it would cause undue hardship to the members of the bargaining unit. She stated that it would cause undue hardship to employees already being accommodated, that Mr. Bubb-Clarke’s problems have not been caused by the seniority system, and that a systemic remedy is ill conceived and will not help Mr. Bubb-Clarke.
THE LAW
In the case of the Ontario Nurses’ Assn. v. Orillia Soldiers Memorial Hospital (1999), 1999 CanLII 3687 (ON CA), 42 O.R. (3d) 692, the collective agreement provided that nurses on unpaid leave of absence did not accumulate seniority and service after the periods set out in the agreement. The grievors were found to be disabled. The Ontario Court of Appeal found, at p. 717:
Disabled workers meeting the Code definition of handicapped, who become disabled in the course of their employment and perhaps as a result of the employment, will be more likely to require an unpaid leave of absence. Depriving those employees of their seniority during those periods of absence in excess of one year makes them increasingly vulnerable to layoff and also less able to compete equally for promotions.
The Court went on to say, at p. 712:
… Admittedly, these employees are treated no differently than other employees on unpaid leave of absence; the difference is that these employees are adversely affected by the rule because of their disability.
The Court went on to state, at p. 717:
The right to accrue seniority is also at the core of the disabled employee’s ability to integrate into the workforce.
The Court then quoted the Abella Report, in part, as follows:
It is not just the opportunity of becoming employed that is at issue, it is the opportunity, once employed, of being able to move through a corporation with the same facility as would any other employee with a disabled individual’s qualifications. … There should be a presumption in favour of a ‘duty of reasonable accommodation’ so that employment barriers are eliminated and access to the fullest range of employment opportunities is available.
In the Ontario Nurses’ Assn. v. Orillia Soldiers Memorial Hospital case, the arbitration proceeded on the basis of a very brief statement of agreed facts and the collective agreement itself. There was no allegation that the impugned provisions had caused actual monetary harm or any harm to the grievors. In the result, the Court of Appeal struck down the provisions with regard to the accumulation of seniority as it applied to disabled employees and stated, at p. 722:
… In my view, the appropriate accommodation is to exempt employees covered by this collective agreement from the provisions curtailing the accumulation of seniority, throughout the period that the nurse remains an employee and falls within the Code definition of handicap: ….
The principles enunciated in Ontario Nurses’ Assn.v. Orillia Soldiers Memorial Hospital, supra, apply to the situation of Mr. Bubb-Clarke and other handicapped or disabled persons who transfer from one division to the other because of their disability. An able worker can consider the consequences and elect whether to transfer; a disabled worker cannot and should be protected from the loss of seniority.
The relevant provisions of the Code are:
Preamble
And Whereas it is public policy in Ontario to recognize the dignity and worth of every person and to provide for equal rights and opportunities without discrimination that is contrary to law, and having as its aim the creation of a climate of understanding and mutual respect for the dignity and worth of each person so that each person feels a part of the community and able to contribute fully to the development and well-being of the community and the Province;
Section 5 (1) of the Code provides:
Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, same-sex partnership status, family status or handicap.
Section 11of the Code provides:
(1) A right of a person under Part I is infringed where a requirement, qualification or factor exists that is not discrimination on a prohibited ground but that results in the exclusion, restriction or preference of a group of persons who are identified by a prohibited ground of discrimination and of whom the person is a member, except where,
(a) the requirement, qualification or factor is reasonable and bona fide in the circumstances;
(2) The Commission, the board of inquiry or a court shall not find that a requirement, qualification or factor is reasonable and bona fide in the circumstances unless it is satisfied that the needs of the group of which the person is a member cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.
Section 17 provides:
(1) A right of a person under this Act is not infringed for the reason only that the person is incapable of performing or fulfilling the essential duties or requirements attending the exercise of the right because of handicap.
(2) The Commission, the board of inquiry or a court shall not find a person incapable unless it is satisfied that the needs of the person cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.
Section 41 provides:
(1) Where the board of inquiry, after a hearing, finds that a right of the complainant under Part I has been infringed and that the infringement is a contravention of section 9 by a party to the proceeding, the board may, by order,
(a) direct the party to do anything that, in the opinion of the board, the party ought to do to achieve compliance with this Act, both in respect of the complaint and in respect of future practices; and
(b) direct the party to make restitution, including monetary compensation, for loss arising out of the infringement, and, where the infringement has been engaged in wilfully or recklessly, monetary compensation may include an award, not exceeding $10,000, for mental anguish.
In the case of British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees’ Union (B.C.G.S.E.U.), 1999 CanLII 652 (SCC), [1999] 3 S.C.R. 3, the British Columbia government established minimum physical fitness standards for its forest firefighters. One of the standards was an aerobic requirement. The claimant, a female firefighter who had in the past performed her work satisfactorily, failed to meet the aerobic standard after four attempts and was dismissed. The claimant’s union brought a grievance on her behalf.
McLachlin J., as she then was, found, at p. 11, that the artificial distinction between direct and adverse effect discrimination no longer applied. She went on to find under the heading “Elements of a Unified Approach”, at pp. 32-33:
Having considered the various alternatives, I propose the following three-step test for determining whether a prima facie discriminatory standard is a BFOR [bona fide operational requirement]. An employer may justify the impugned standard by establishing on the balance of probabilities:
(1) that the employer adopted the standard for a purpose rationally connected to the performance of the job;
(2) that the employer adopted the particular standard in an honest and good faith belief that it was necessary to the fulfilment of that legitimate work-related purpose; and
(3) that the standard is reasonably necessary to the accomplishment of that legitimate work-related purpose. To show that the standard is reasonably necessary, it must be demonstrated that it is impossible to accommodate individual employees sharing the characteristics [page 33] of the claimant without imposing undue hardship upon the employer.
This approach is premised on the need to develop standards that accommodate the potential contributions of all employees in so far as this can be done without undue hardship to the employer. Standards may adversely affect members of a particular group, to be sure. But as Wilson J. noted in Central Alberta Dairy Pool, supra, at p. 518, ‘[if] a reasonable alternative exists to burdening members of a group with a given rule, that rule will not be [a BFOR]’. It follows that a rule or standard must accommodate individual differences to the point of undue hardship if it is to be found reasonably necessary. Unless no further accommodation is possible without imposing undue hardship, the standard is not a BFOR in its existing form and the prima facie case of discrimination stands.
Having set out the test, I offer certain elaboration on its application.
Step One
The first step in assessing whether the employer has successfully established a BFOR defence is to identify the general purpose of the impugned standard and determine whether it is rationally connected to the performance of the job. The initial task is to determine what the impugned standard is generally designed to achieve. The ability to work safely and efficiently is the purpose most often mentioned in the cases but there may well be other reasons for imposing particular standards in the workplace. In Brossard, supra, for example, the general purpose of the town’s anti-nepotism policy was to curb actual and apparent conflicts of interest among public employees. In Caldwell, supra, the Roman Catholic high school sought to maintain the religious integrity of its teaching environment and curriculum. In other circumstances, the employer may seek to ensure that qualified employees are present at certain times. There are innumerable possible reasons that an [page 34] employer might seek to impose a standard on its employees.
In the present case, there is no evidence that the requirement that Mr. Bubb-Clarke having transferred to Maintenance because of his disability have no seniority transferred with him is a BFOR. In fact, there was no evidence explaining how the non-transferability was an occupational requirement. At p. 37, McLachlin J. went on to state:
Some of the important questions that may be asked in the course of the analysis include:
(f) Have other parties who are obliged to assist in the search for possible accommodation fulfilled their roles? As Sopinka J. noted in Renaud, supra, at pp. 992-96, the task of determining how to accommodate individual differences may also place burdens on the employee and, if there is a collective agreement, a union.
Ms. Ursel argued, on behalf of the Union, that the Union by suggesting the Collector job had fulfilled its responsibility. She argued that Mr. Bubb-Clarke was entitled to a reasonable solution, not the perfect solution.
That approach is flawed. Once it is determined that Mr. Bubb-Clarke’s loss of seniority is discrimination, because the transfer is due to his handicap, it is not then open to the Union to suggest that “we have a solution that partially cures that discrimination”. It is not an acceptable answer to say that “we have cured 20% or 80% of the discrimination”. The question is whether there is a way that the discrimination can be cured short of undue hardship to the employer or, in this case, the Union. Allowing Mr. Bubb-Clarke, or any disabled employee, to transfer with all of the earned seniority while employed by the TTC is not an undue hardship to the TTC or the Union. Such a solution eliminates the discrimination.
Ms. Ursel referred to the case of Québec (Commission des droits de la Personne et des droits de la jeunesse) v. Montréal (City); Québec (Commission des droits de la la Personne et des droits de la jeunesse) v. Boisbriand (City), [2002] 1 S.C.R. 665. In that case, the City of Montréal refused to hire M as a gardener-horticulturist, and the CUM refused to hire H as a police officer, because the pre-employment medical exam in both cases revealed an anomaly of the spinal column. The City of Boisbriand dismissed T from his position as a police officer because he suffered from Crohn’s disease. The medical evidence in each case indicated that the individuals could perform the normal duties of the position in question and that they had no functional limitations. L’Heureux-Dubé J., at p. 701, stated as follows:
As with distinctions based on the other enumerated grounds, distinctions based on ‘handicap’ are not necessarily discriminatory. Even if the existence of a ‘handicap’ within the meaning of s.10 of the Charter is proven, all of the employer’s acts do not necessarily constitute discriminatory distinctions. In the present case, the employer acknowledges the causal connection between the complainants’ conditions and the dismissal or refusal to hire. However, in most cases, the applicants will have the burden of proving (1) the existence of a distinction, exclusion or preference, in this case the dismissal and the refusal to hire; (2) that the distinction, exclusion or preference is based on a ground enumerated in s.10, in this case handicap, and (3) that the distinction, exclusion or preference has the effect of nullifying or impairing the right to full and equal exercise of human rights and freedoms. ….
[Emphasis added.]
Ms. Ursel argues that there is no causal connection between the seniority provisions of the collective bargaining agreement and the failure of Mr. Bubb-Clarke to be the successful bidder on jobs that he would prefer. She argues that the fact that vacancies are offered first to the members in the particular subdivision means that Mr. Bubb-Clarke is not likely to obtain a job in that subdivision.
I leave aside the question of whether the bidding for jobs by subdivision in itself discriminates against Mr. Bubb-Clarke, because I am not asked to decide that question. Because of the connection between the discrimination and the loss of seniority, the discrimination causes the disabled person, in this case Mr. Bubb-Clarke, to start in the Maintenance Division with zero seniority and puts the disabled person at a distinct disadvantage from all other members in the Maintenance Division. To say, as the Union suggested, that Mr. Bubb-Clarke could transfer to the Collector position and not lose his seniority does not solve the problem. Even leaving aside the fact that Mr. Bubb-Clarke is, because of his disability, not suited for the Collector job, and leaving aside the fact that he does not wish the Collector job, the discrimination would remain in that it would limit the number of jobs available to Mr. Bubb-Clarke and to disabled members transferring because their disability means that they can no longer perform the job they had been performing.
Ms. Ursel also referred to the case of Bhadauria v. Toronto (City) Board of Education (1990), 1990 CanLII 12501 (ON HRT), 12 C.H.R.R. D/105 (Ont. Bd. Inq.). She referred to the statement, at para. 124:
… [T]he evidence here is successful in establishing that Mr. Bhadauria is a part of a ‘well-defined group’ [of South Asians].
Ms. Ursel referred to this statement for the proposition that in order for Mr. Bubb-Clarke to succeed, he must establish that he is part of a group. This is not logical as, surely, one person discriminated against is not barred from the provisions of the Code because he or she cannot show that they are part of a group. But even if that were the law, Mr. Bubb-Clarke is part of a group of disabled employees who have to transfer from their employment to other employment because of their disability and wish to have their full seniority transferred with them.
The evidence disclosed that there were other such employees, some of whom had been partially accommodated. In the case of Central Okanagan School District No. 23 v. Renaud, 1992 CanLII 81 (SCC), [1992] 2 S.C.R. 970, Sopinka J. stated, at p. 984:
… The extent to which the discriminator must go to accommodate is limited by the words ‘reasonable’ and ‘short of undue hardship’. These are not independent criteria but are alternate ways of expressing the same concept.
That applies to the present case. Ms. Ursel argues that Mr. Bubb-Clarke is reasonably accommodated in the Collector position. But if ‘reasonable’ in this context means the same thing as ‘short of undue hardship’, then there is no evidence to show that the only accommodation short of undue hardship is the Collector position.
Sopinka J. went on to say, at pp. 991-93:
… I agree with the submissions of the respondent union and CLC that the focus of the duty differs from that of the employer in that the representative nature of a union must be considered. The primary concern with respect to the impact of accommodating measures is not, as in the case of the employer, the expense to or disruption of the business of the union but rather the effect on other employees. The duty to accommodate should not substitute discrimination against other employees for the discrimination suffered by the complainant. Any significant interference with the rights of others will ordinarily justify the union in refusing to consent to a measure which would have this effect. Although the test of undue hardship applies to a union, it will often be met by a showing of prejudice to other employees if proposed accommodating measures are adopted. As I stated previously, this test is grounded on the reasonableness of the measures to remove discrimination which are taken or proposed. Given the importance of promoting religious freedom in the workplace, a lower standard cannot be defended.
… In such circumstances, the union may not be absolved of its duty if it failed to put forward alternative measures that were available which are less onerous from its point of view. I would not be prepared to say that in every instance the employer must exhaust all the avenues which do not involve the collective agreement before involving the union. A proposed measure may be the most sensible one notwithstanding that it requires a change to the agreement and others do not. This does not mean that the union’s duty to accommodate does not arise until it is called on by the employer. When it is a co-discriminator with the employer, it shares the obligation to take reasonable steps to remove or alleviate the source of the discriminatory effect.
And at pp. 994-95:
Finally, in view of the fact that the duty to accommodate of the union was shared jointly with the employer, it was not incumbent on the member designate to determine whether all other reasonable accommodations had been explored by the employer before calling upon the union. ….
Duty of Complainant
The search for accommodation is a multi-party inquiry. Along with the employer and the union, there is also a duty on the complainant to assist in securing an appropriate accommodation. The inclusion of the complainant in the search for accommodation was recognized by this Court in O’Malley. At page 555, McIntyre J. stated:
Where such reasonable steps, however, do not fully reach the desired end, the complainant, in the absence of some accommodating steps on his own part such as an acceptance in this case of part-time work, must either sacrifice his religious principles or his employment.
To facilitate the search for an accommodation, the complainant must do his or her part as well. Concomitant with a search for reasonable accommodation is a duty to facilitate the search for such an accommodation. Thus in determining whether the duty of accommodation has been fulfilled the conduct of the complainant must be considered.
This does not mean that, in addition to bringing to the attention of the employer the facts relating to discrimination, the complainant has a duty to originate a solution. While the complainant may be in a position to make suggestions, the employer is in the best position to determine how the complainant can be accommodated without undue interference in the operation of the employer’s business. When an employer has initiated a proposal that is reasonable and would, if implemented, fulfil the duty to accommodate, the complainant has a duty to facilitate the implementation of the proposal. If failure to take reasonable steps on the part of the complainant causes the proposal to founder, the complaint will be dismissed. The other aspect of this duty is the obligation to accept reasonable accommodation. This is the aspect referred to by McIntyre J. in O’Malley. The complainant cannot expect a perfect solution. If a proposal that would be reasonable in all the circumstances is turned down, the employer’s duty is discharged.
In the present case, the TTC has agreed to the accommodation requested. Mr. Bubb-Clarke is in full agreement that that is the appropriate accommodation. In my view, the Union has not fulfilled its obligation. The Union has not fulfilled the duty which it “shared jointly with the employer” by suggesting one job which, at best, Mr. Bubb-Clarke did not wish to have as a possible partial alleviation of the discrimination.
The Union cannot show “prejudice to other employees” when it has granted similar accommodation to Mr. Bubb-Clarke by granting five years’ seniority. It is not reasonable to say five years is okay but ten years is an undue hardship to other employees. What the Union is defending is the right to determine when and if and to what extent accommodation is granted. The Code should not be interpreted as allowing the Union to refuse full accommodation (unless it results in undue hardship).
In the case of Eldridge v. British Columbia (Attorney General), 1997 CanLII 327 (SCC), [1997] 3 S.C.R. 624, the Supreme Court of Canada was dealing with the situation where medicare was not providing for sign language interpreters. The Court stated, at p. 672:
Adverse effect discrimination is especially relevant in the case of disability. The government will rarely single out disabled persons for discriminatory treatment. More common are laws of general application that have a disparate impact on the disabled.
The Court further stated, at p 673:
… [I]t is often the failure to take into account the adverse effects of generally applicable laws that results in discrimination.
Approving the language of Sopinka J. in the Eaton case (Eaton v. Brant County Board of Education, 1997 CanLII 366 (SCC), [1997] 1 S.C.R. 241) the Court further quoted Sopinka J. in that case wherein he stated:
… Avoidance of discrimination on this ground will frequently require distinctions to be made taking into account the actual personal characteristics of disabled persons. ….
… Rather, it is the failure to make reasonable accommodation, to fine-tune society so that its structures and assumptions do not result in the relegation and banishment of disabled persons from participation, which results in discrimination against them.
In the case of Action Travail des Femmes v. C.N.R. Co. (1987), 1987 CanLII 109 (SCC), 40 D.L.R. (4th) 193 (S.C.C.), the Court stated, at p. 206:
Human rights legislation is intended to give rise, amongst other things, to individual rights of vital importance, rights capable of enforcement, in the final analysis, in a court of law. I recognize that in the construction of such legislation the words of the Act must be given their plain meaning, but it is equally important that the rights enunciated be given their full recognition and effect. We should not search for ways and means to minimize those rights and to enfeeble their proper impact. Although it may seem commonplace, it may be wise to remind ourselves of the statutory guidance given by the federal Interpretation Act which asserts that statutes are deemed to be remedial and are thus to be given such fair, large and liberal interpretation as will best ensure that their objects are attained: see s. 11 of the Interpretation Act, R.S.C. 1970, c. I-23, as amended. As E.A. Driedger, Construction of Statutes, 2nd ed. (1983), p. 87, has written:
Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.
The purposes of the Act would appear to be patently obvious, in light of the powerful language of s.2. In order to promote the goal of equal opportunity for each individual to achieve ‘the life that he or she is able and wishes to have’, the Act seeks to prevent all ‘discriminatory practices’ based, inter alia, on sex. It is the practice itself which is sought to be precluded. The purpose of the Act is not to punish wrongdoing but to prevent discrimination.
[Emphasis added.]
In MacEachern v. St. Francis Xavier University (1992), 1994 CanLII 18455 (NS HRC), 24 C.H.R.R. D/226 (N.S. Bd. of Inq.), MacEachern, for religious reasons, could not work from sundown Friday to sundown Saturday. The learned adjudicator stated at paras. 84-88:
Ordinarily the employer, who is in charge of the workplace, will be in the better position [to] formulate accommodations and therefore can be expected to initiate the process. The employer’s steps to accommodate must be reasonable vis-à-vis the union’s interests. As stated in Renaud, supra, by Sopinka at 591 [D/438, para. 39]:
If the proposed measure is one that is least expensive or disruptive to the employer but disruptive of the collective agreement or otherwise affects the rights of other employees, then this will usually result in a finding that the employer failed to take reasonable measures to accommodate and the union did not act unreasonably in refusing to consent.
The union may not be absolved of its duty to accommodate if it fails to put forward alternative measures that are available which are less onerous from its point of view than those proposed by the employer. As held by Justice Sopinka in Renaud, supra, ‘When [the union] is a co-discriminator with the employer, it shares the obligation to take reasonable steps to remove or alleviate the source of the discriminatory effect’ (p. 591 [D/438, para. 39]). Furthermore, where the union has not been a party to the formulation of the discriminatory rule, its ‘duty arises only when its involvement is required to make accommodation possible and no other reasonable alternative for resolution of the matter has been found or could reasonably have been found’ (p. 592 [D/438, para. 40]). In cases where a union is a party to creating the work rule which has an adverse effect, the union has an initial duty to accommodate.
[Emphasis added.]
While holding in Renaud, supra, that the provisions of a collective agreement cannot absolve the parties from the duty to accommodate, the Supreme Court found that the effect of the agreement is relevant in assessing the degree of hardship occasioned by interference with its terms. On this point, Justice Sopinka stated at p. 587 [D/434, para. 26] as follows:
Substantial departure from the normal operation of the conditions and terms of employment in the collective agreement may constitute undue interference in the operation of the employer’s business.
The focus of the duty to accommodate differs from that of the employer because of the representative nature of a union. The test of undue hardship with respect to a union is ‘grounded on the reasonableness of the measures to remove discrimination which are taken or proposed’ (Sopinka J. at p. 588 [D/438, para. 38], emphasis added). Undue hardship with respect to a union is to be assessed, not on the basis of expense or disruption to the business of the union, but rather with respect to the effect on other employees. At p. 591 [D437-D/438, para. 38]:
The duty to accommodate should not substitute discrimination against other employees for the discrimination suffered by the complainant. Any significant interference with the rights of others will ordinarily justify the union in refusing to consent to a measure which would have this effect. Although the test of undue hardship applies to a union, it will often be met by a showing of prejudice to other employees if proposed accommodating measures are adopted.
Justice Sopinka examined the legitimacy of employee objections to accommodating the religious adherent (p. 588 [D/435, para 30]):
It is a factor that must be applied with caution. The objection of employees based on well-grounded concerns that their rights will be affected must be considered. On the other hand, objections based on attitudes inconsistent with human rights are an irrelevant consideration. I would include in this category objections based on the view that the integrity of a collective agreement is to be preserved irrespective of its discriminatory effect on an individual employee on religious grounds.
[Emphasis added.]
In my view, this latter statement is a complete answer to Ms. Ursel’s argument that interference with the collective agreement to any extent should not be tolerated. It is only when that interference causes undue hardship to other employees that it must be considered. No such undue hardship to other employees has been shown.
Ms. Ursel argued that the terms of the collective agreement, which are the result of hard bargaining over a lengthy period of time, should not be disturbed. Her arguments amounted to an argument based on the “integrity of a collective agreement”. In my view, what Sopinka J. is saying in the emphasized portion is that the integrity of the collective agreement is not to be preserved unless the proposed accommodation causes undue hardship to other employees.
It is interesting to note that the adjudicator used the words “to remove discrimination”. There is no suggestion in this case, or in any other cases, that partially alleviating some of the impact of discrimination, leaving some discrimination, is an appropriate remedy for the discrimination.
With regard to the reference to the effect on other employees, there is no evidence in our case on impact on other employees. However, theoretically, if Mr. Bubb-Clarke is granted the seniority since he was first employed by the TTC, he may succeed in obtaining a job that except for that seniority would have gone to another member of the Union. But that is no different than the situation would be if he were in the Collector job. His seniority in that job would give him the right to bid for a job that might otherwise have gone to a Union member. Accordingly, the interference with the rights of other Union members, even theoretically, is minor if it exists at all.
Ms. Ursel referred to Lavigne v. Ontario Public Service Employees Union, 1991 CanLII 68 (SCC), [1991] 2 S.C.R. 211. In that case, Mr. Lavigne objected to the use of his dues for political initiatives that he might not agree with. She particularly relied on the words of Madam Justice Wilson, at p. 296:
… However, the disruption to the Union’s hard-won position under the collective agreement is a relevant factor to be considered in determining whether it has discharged its responsibility to accommodate up to the point of undue hardship.
In our case, the concession that is asked does not impact on the collective agreement in a significant way. However, even if it did, the Union is not objecting to a concession but is seeking to control when and if concessions are made. In granting Mr. Bubb-Clarke some five years of seniority, they referred in their correspondence to it being on compassionate ground and a significant concession contrary to the collective agreement. It is hardly consistent for the Union to object to this Board awarding the same type of remedy but a greater number of years of seniority. They surely cannot call it a “disruption to the Union’s hard-won position under the collective agreement”.
The seniority system under the collective agreement discriminated against disabled workers who transferred out of Transportation Division to Maintenance Division because of their disability. The result of the seniority provisions in the collective agreement was that people in Mr. Bubb-Clarke’s position arrived in Maintenance with zero seniority. That caused a number of disadvantages in job bidding, shift choosing, vacation choosing, etc.
The suggestion by the Union that Mr. Bubb-Clarke accept a Collector job did not solve the problem.
The TTC did not offer the Collector job to Mr. Bubb-Clarke. Their information was that the job was not suitable for Mr. Bubb-Clarke. In any event, the Collector job did not solve the problem because the discrimination would remain if Mr. Bubb-Clarke transferred out of the Collector job for any reason. The Union wishes to consider any proposed accommodation and determine if the proposed accommodation is satisfactory. A right to have the Union consider proposed accommodation and to have the members vote on same, as they did in allowing some seniority to Mr. Bubb-Clarke, implies that the accommodation may be refused and the discrimination continued. The Union would have Mr. Bubb-Clarke take a job in which he does not feel comfortable. If he did, he would still be discriminated against because of his disability. Short of undue hardship, Mr. Bubb-Clarke and others in a similar position are entitled to be free of discrimination.
The correspondence from the Union referred to the granting of the seniority that they approved by Union vote as a significant concession. They even referred to it as compassionate and as being contrary to the collective agreement. People in Mr. Bubb-Clarke’s position should not be subject to the Union’s vote to free them of discrimination even if the Union approaches it from a compassionate point of view or as a significant concession.
The Commission has proven that the effect of the provisions of the collective agreement relating to seniority discriminate against disabled workers who transfer because of their disability. The Union has not satisfied the onus on it to show that the accommodation requested cannot be accomplished without undue hardship.
In the case of Drager v. I.A.M. & A.W. (1994), 1994 CanLII 18440 (BC HRT), 20 C.H.R.R. D/119 (B.C.C.H.R.), the member because of religion wanted a superior shift schedule. The union had put forth suggestions but the employer refused. In that case, it was held that the union had made every effort to accommodate and there was no finding against the union.
Ms. Ursel argued that this case was applicable to Mr. Bubb-Clarke. However, in Mr. Bubb-Clarke’s case, the employer has agreed to the full accommodation asked for and it is the Union who has refused. Accordingly, the Drager case is of no assistance.
In the case of Williams v. Elty Publications Ltd. (1992), 1992 CanLII 14270 (BC HRT), 20 C.H.R.R. D/52 (B.C.C.H.R.), the adjudicator stated, at para. 68, that:
It does not seem useful to me to formulate a general rule regarding the responsibility of employees to bring details of their disabilities to their employers’ attention because every case will depend on an analysis of the particular facts involved. In the circumstances of this complaint, though, I do not think that the complainant can allege discrimination or failure to accommodate before she informed the respondent of what she felt was required to accommodate her disability. The facts in this case point to a failure on the part of the complainant to communicate with the respondent rather than to any discriminatory actions on the part of the respondent.
Although Ms. Ursel cited this case in argument, it is not applicable because in our case the Complainant and the Commission and the employer have made it quite clear, for some five or six years, that Mr. Bubb-Clarke wished to have the right to transfer his full seniority since he first became employed by the TTC.
In the case of Ivison v. Bodner (1994), 1994 CanLII 18448 (BC HRT), 26 C.H.R.R. D/505 (B.C.C.H.R.), the adjudicator stated at paras. 31 and 32:
… [T]he complainant has a responsibility to be reasonable in the search for accommodation: ….
Part of the complainant’s duty is to make the respondents aware of the need for accommodation. The respondents could not be expected to make accommodation for a disability of which they were unaware: ….
This case also is not applicable as the Union cannot say that they have been unaware. In fact, they have been aware for five or six years of the complaint and the request for accommodation by giving Mr. Bubb-Clarke full seniority while employed by the TTC.
Ms. Ursel also cited the following two cases.
In the case of Re CANPAR and United Steelworkers of America, Local 1976 (2000), 2000 CanLII 50210 (CA LA), 93 L.A.C. (4th) 208, the arbitrator found, at p. 212:
… It now seems well-established that when an employee seeks accommodation by reason of a status that is protected under the Canadian Human Rights Act, it is incumbent upon the employee concerned to contribute positively to the process, and to accept an offer of reasonable accommodation, even though it might not be the specific accommodation which the employee would prefer. That is reflected, in part, in the decision of the Supreme Court of Canada in Central Okanagan School District No. 23 v. Renaud, ….
And, further, at p. 215:
While it may be arguable that different formulas of accommodation might be fashioned, some of which could be more appealing to Mr. Wilson, it is not the obligation of the Company under the Canadian Human Rights Act to necessarily offer an employee seeking accommodation the precise accommodated assignment that he or she might demand. If the employer offers to the employee a work opportunity involving substantially similar working conditions and earnings opportunities, as was manifestly done in the case at hand, in a manner which does not involve any significant adversity to the employee, it has fulfilled its obligation of reasonable accommodation.
To the same effect is the case of Bonetti v. Escada Canada Inc. (1995), 25 C.H.R.R. D/149 (B.C.C.H.R.). The adjudicator said, at para. 92:
Since Escada took reasonable steps to accommodate Bonetti’s pregnancy, it was incumbent upon her to be reasonable, and to accept a resolution that may not have been, from her point of view, perfect.
In both of these last two cases, there were appropriate reasons why the accommodation which the complainant would have preferred was not reasonable. There is no evidence in the present case that the accommodation requested creates undue hardship due to reasons of cost or health and safety or even inconvenience.
In Greater Niagara General Hospital and Service Employees International Union, Local 204 (1995), 1995 CanLII 18400 (ON LA), 47 L.A.C. (4th) 366, the arbitrators found, at p. 378:
In this case, the union did meet with its members and ask them to consider the proposed accommodation of Ms Winter’s disability by introducing her into the bargaining unit with all of her seniority. The union had already agreed to waive certain collective agreement provisions to make Ms Winter’s entry into the bargaining unit possible; it had never taken the position that the collective agreement was a complete answer to any request by the hospital. The members balked at the proposal because they had concerns about their own job security.
And, further, at pp. 379-380:
This is not a case where employees have been asked to make a minor sacrifice which could not affect their job security and their employment future in order to safeguard a fellow employee’s human rights. Here the employees in this bargaining unit have been asked to do something which would have a direct effect on their rights, and which would have a significant impact on their own employment prospects. The impact on their rights, if they accede to the request, is as great as the effect on Ms Winter if her full seniority is not recognized.
We recognize the force of the argument that to allow Ms Winter to take her place in the clerical bargaining unit without her full seniority is no accommodation at all because she is unemployable elsewhere in the hospital due to her disability, and because she will not have any job security. It is indeed a tragic situation; however, the obligation to accommodate is not an absolute one, and if undue hardship is demonstrated by the party who must accommodate, then the law does not require that that undue hardship be ignored.
The other cases cited to us, while interesting and informative, are not as helpful in giving direction as is the Renaud decision; therefore, we will make no further reference to them. Further, we see nothing in them which is inconsistent with the Renaud decision.
The fact that schemes may be devised, or have been devised, to deal with merging seniority lists or with transfers between merging hospitals is really of no consequence here. In this instance it is accepted that the collective agreement must be varied in order to recognize all of Ms Winter’s seniority, and that the hospital, as willing as it may be to do so, cannot unilaterally recognize all of her seniority. Therefore, what others might do or might have done does not matter; the question is whether the union in this case improperly refused to allow this accommodation.
Having considered all of the facts and the impact which the recognition of full seniority rights would have on the rights of the members of the bargaining unit, we cannot conclude that the union’s refusal was unreasonable. The union set about in a reasonable fashion to discover the wishes of its members; the concerns which those members expressed, both to and through the union, are real, significant and are not inconsistent with the recognition of human rights. We, therefore, find that to accommodate Ms Winter with her full seniority would impose an undue hardship upon the union, and it is, therefore, not required by law to so accommodate her. For all of the reasons set out herein, the grievance is allowed.
[Emphasis added.]
The Union has failed in the present case to prove or even to adduce evidence tending to show undue hardship to the Union or its members if the accommodation is granted. Further, there is no evidence that Union members are unwilling to give Mr. Bubb-Clarke full seniority or that such accommodation is a threat to them. The suggestion of full seniority was never put to Union members.
In Re Bayer Rubber Inc. and Communications, Energy and Paperworkers Union, Local 914 (1997), 1997 CanLII 25049 (ON LA), 65 L.A.C. (4th) 261, the arbitrator stated, at p. 288:
In summary, it is clear that the accommodation selected by the Employer violated the grievor’s seniority rights and constituted a marked departure from the terms and conditions of the collective agreement. In the course of this Award, I have determined as follows: (i) the Employer failed to scan the workplace for other options; (ii) the Employer chose an accommodation for Mr. Boodram without considering its substantial impact on the grievor; and (iii) the Employer failed to engage in meaningful discussion with the Union concerning other options. In so doing, it arrived at an accommodation which must be viewed as unreasonable. Indeed, I find that the Union had sufficient grounds to object to the accommodation given the nature of its effect on the grievor’s seniority rights.
Although the language above refers to the “Employer”, it is applicable to the Union because they, the Union, “in so doing, it arrived at an accommodation which must be viewed as unreasonable”. The Collector solution was unreasonable.
In Re MacMillan Bloedel and Communications, Energy and Paperworkers Union of Canada, Local 76 (1998), 1998 CanLII 30165 (BC LA), 75 L.A.C. (4th) 34, the arbitrator stated, at p. 47:
In cases in which the employer has accommodated one employee to the detriment of others, it is fair to say that the duty to look for other solutions will be highest where the harm to other employees is the greatest.
Applying that principle to the present case, there is no significant harm shown to other employees by the accommodation requested.
In Re Colonial Cookies and United Food and Commercial Workers, Local 617P (1999), 1999 CanLII 20364 (ON LA), 82 L.A.C. (4th) 101, the arbitrator found that the accommodation requested would not be appropriate as it would mean that the incumbent in the position sought would lose her job and stated, at p. 107: “suggests to me that there would be ‘undue hardship’ to the person who would have to accommodate the grievor, that is the incumbent”. The adjudicator found that, at p. 107:
… Clearly a minor inconvenience to the incumbent would not constitute undue hardship, but it is equally clear the rights of other employees must be considered when some form of accommodation is contemplated and one should try to seek accommodation with as little interference with those rights as possible.
The accommodation of transferring full seniority fulfils those conditions.
DECISION
For 5-1/2 years, Mr. Bubb-Clarke has been frustrated because of the lack of seniority to which he was entitled. I find that the Union was wilful and reckless in this regard causing mental anguish. I make the following award:
General damages and damages for mental anguish payable by the Union to Mr. Bubb-Clarke at the rate of $4,000 per year, or $22,000;
Granting to Mr. Bubb-Clarke full seniority for all the time employed by the TTC transferable to his present position or any position that he may occupy as a result of his disability;
An order that the Union and Employer grant to any employee, who is disabled and who transfers out of his earlier position to another because of the disability, full seniority for all the time employed by the TTC;
A declaration that a restriction on the transferability of seniority, where the transfer is because of disability, discriminates against the employee with the disability.
There will be no prejudgment or postjudgment interest on the amount awarded.
COMMENT
As I have said, allowing someone in the position of Mr. Bubb-Clarke to keep their seniority does not cause undue hardship. However, it is conceivable that the use of that seniority to bump another employee from a job may result in undue hardship. Those facts and that issue were not before me and I specifically refrain from making any further comment in that regard. That decision will have to be made when the issue arises in the context of the actual facts in that case.
Dated at Toronto, this 4th day of April 2002.
“The Honourable Alvin B. Rosenberg, Q.C.”
The Honourable Alvin B. Rosenberg, Q.C.
Member