Rosario Boncori v. TRW Canada Limited, 2008 HRTO 178

Human Rights Tribunal of Ontario

B E T W E E N:

Rosario Boncori Applicant

-and-

TRW Canada Limited Respondent

case Resolution Conference DECISION

Adjudicator: Mark Hart Date: October 22, 2008 Citation: 2008 HRTO 178 Indexed As: Boncori v. TRW Canada Limited

Human Rights Tribunal of Ontario 655 Bay Street, 14^th^ Floor Toronto, ON M7A 2A3 Phone 416-314-8419 Fax 416- 314-8743 Toll Free 1-866-598-0322 TTY 416-314-2379 Toll Free 1-800-424-1168 E-mail hrto.registrar-transition@ontario.ca Website www.hrto.ca

AppearanceS BY

Rosario Boncori, Applicant ) Self-represented TRW Canada Limited, Respondent ) Michael Failes, Counsel )

1This decision relates to a request by the respondent for the dismissal of this Application pursuant to s. 45.1 of the Ontario Human Rights Code (the "Code") on the basis that the substance of the Application has been appropriately dealt with by an arbitration decision. An oral hearing in this matter was conducted on September 25, 2008.

BACKGROUND

2The Application in this matter was filed on July 20, 2008 and pertains to a complaint that had been filed with the Ontario Human Rights Commission on January 9, 2007 alleging that the applicant had experienced discrimination in employment because of his disability and reprisal.

3The applicant is a unionized employee with a seniority date of May 10, 1993 who worked for the respondent in a variety of jobs. The applicant experienced a workplace accident on July 15, 1994 that resulted in a back injury. The applicant returned to work following his accident.

4He was off work in November 2003 on account of symptoms related to his injury but was able to return to the position of RS Socket Operator. He remained in that position until October 2004 when he again went off on disability leave. Although cleared to return to work by his doctor on November 8, 2004, provided certain workplace accommodations were continued, the respondent engaged the services of an occupational therapist to review the physical demands of various jobs at the respondent's plant in light of the applicant's permanent medical restrictions. The occupational therapist's conclusion was that the applicant's permanent restrictions rendered him incapable of performing the duties of any of the positions reviewed, including the RS Socket Operator position.

5A grievance was filed on behalf of the applicant by his union, the Thompson Products Employees' Association (the "TPEA" or the "union") on April 3, 2006, alleging that the respondent was not allowing the applicant to return to work due to his medical restrictions and requesting that the applicant be reinstated with full compensation. The grievance was heard on various dates from August 2006 to April 2007, with the arbitrator's decision released on December 16, 2007. The grievance was dismissed.

REQUEST TO DISMISS UNDER SECTION 45.1

General Principles

6Section 45.1 of the Code provides as follows:

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

7As a result, the issue for this Tribunal is whether the arbitrator's decision has appropriately dealt with the substance of all or part of the Application, such that all or part of the Application should be dismissed.

8In Campbell v. Toronto District School Board, 2008 HRTO 62, this Tribunal held that it was helpful to consider s. 45.1 in two parts: (1) whether there was another "proceeding" and (2) if so, whether it "appropriately dealt with" the substance of the Application.

9With regard to the second issue, this Tribunal cited the jurisprudence of the BC Human Rights Tribunal holding that it will consider whether the Application arises from the same facts that provided the basis for the other proceeding, whether the substance of the issues raised in each forum was in pith or essence substantially the same, and whether the matter raised was "appropriately dealt with" in the other proceeding: Villella v. City of Vancouver and others (No. 3), 2005 BCHRT 405, 2005 B.C.H.R.T. 405 at paras. 14 to 19; Rush v City of Richmond, 2008 BCHRT 62 at paras. 52, 55.

10In determining whether the matter was "appropriately dealt with" in the other proceeding, the appropriate role for the Tribunal is to determine whether the arbitrator proceeded fairly and upon the proper principles, with due consideration of the facts and human rights law relevant to the discrimination issue before him: Rush v City of Richmond, supra at para. 76.

Was there another "proceeding"?

11In the instant case, I am dealing with a labour arbitrator who was appointed pursuant to the terms of a collective agreement between the respondent and the applicant's union. Nonetheless, under section 48 of the Labour Relations Act, parties are required to have an arbitration clause under the collective agreement and labour arbitrators are given express statutory powers to conduct an adjudicative hearing, including the power to interpret and apply human rights legislation, and to make decisions that are binding upon the parties and enforceable in the same manner as a court order. I have no hesitation in finding that a labour arbitration under a collective agreement is a "proceeding" within the meaning of s. 45.1 of the Code.

Was the substance of the Application appropriately dealt with in the labour arbitration?

Does the Application arise from the same facts?

12I am satisfied the Application includes the same facts that gave rise to the labour arbitration. The complaint that was filed and that forms the basis of this Application describes a series of incidents, including: the removal of the ergonomic chair that was being utilized by the applicant and the failure to provide him with a replacement chair; alleged deficiencies in the report prepared and conclusions reached by the occupational therapist; alleged failures on the respondent's part to take actions to accommodate the applicant; and allegations about matters raised at the arbitration hearing. These are precisely the same facts that form the basis of the grievance and the labour arbitration award.

13The applicant's complaint, however, also includes reference to alleged harassment by his supervisor in 2004 when he was working in the RS Socket Operator position and his efforts to get this alleged harassment addressed by management. While the respondent submitted that this alleged harassment was part and parcel of the applicant's overall allegation that he was not being properly accommodated, the fact is that separate grievances were filed by the union to address disciplinary actions taken against the applicant as part of the alleged harassment. These grievances were not referred to the arbitrator together with the accommodation grievance and therefore do not form part of the labour arbitration award. The parties have advised that these grievances remain outstanding.

14In the end, I find that the portion of the Application dealing with the applicant's request for accommodation does arise from the same facts as were addressed in the labour arbitration proceeding. However, I find that the harassment allegations set out in paragraphs 3 and 7 of the complaint do not arise from the same facts.

15After the oral hearing in this matter was held, the applicant filed further written submissions with the Tribunal relating largely to ongoing discussions about whether the applicant can be accommodated in suitable work on the basis of current information about his functional abilities. These discussions post-date both the Commission complaint and the arbitration decision. In the absence of exceptional circumstances, the Tribunal will not allow an applicant in an Application filed under s. 53(3) of the Code to expand the subject-matter of the complaint filed with the Commission. Thus, ongoing accommodation discussions will not be considered.

Are the same issues being raised in both proceedings?

16The arbitration decision deals with the issues of whether the respondent had violated the collective agreement by not allowing the applicant to work in the job of RS Socket Operator, whether the respondent failed to properly consider requests for accommodation and modification of the RS Socket Operator position, and the respondent's general obligation to accommodate a disabled worker.

17The same issues arise in relation to the accommodation allegations raised in the Application.

18Accordingly, with respect to the accommodation allegations in the Application, I find that they raise the same issues as were addressed in the arbitration decision. However, with respect to the harassment allegations, for the same reasons as articulated above, I find that these allegations raise a different set of issues that were not dealt with at arbitration.

Was the matter "appropriately dealt with" in the other proceeding?

19In my view, there appears to be no real issue as to the fairness of the arbitration process. The applicant's interests in the arbitration proceeding were well-represented by union counsel. While the applicant takes issue with the procedural wrangling that consumed several of the initial days of the arbitration hearing, the arbitrator afforded the parties the opportunity to call evidence and make submissions.

20The arbitrator considered the Supreme Court of Canada decisions in British Columbia (Public Service Employee Relations Commission) v. BCGSEU 1999 CanLII 652 (SCC), [1999] 3 S.C.R. 3 and Central Okanagan School District No. 23 v. Renaud (1992) 1992 CanLII 81 (SCC), 95 D.L.R.(4^th^) 577, which are leading decisions dealing with the duty to accommodate in the workplace and which clearly set out the proper principles. I note that while the arbitration decision primarily addresses the issue as framed by union counsel of whether the applicant was improperly disallowed from returning to a specific job, the decision does address the broader accommodation issue. The applicant has not shown me that the arbitrator failed to consider facts relevant to the accommodation issue and, after a careful review of the decision, I am satisfied there is no basis to support any alleged failure on the arbitrator's part to give due consideration to the evidence before him as to what accommodations were being sought.

21The arbitrator heard the evidence of the occupational therapist, who was qualified as an expert witness and who was subjected to a vigorous cross-examination by union counsel. In the end, the arbitrator accepted this witness's conclusion that the applicant could not perform the essential duties of the RS Socket Operator position or any of the other positions he reviewed within the scope of his permanent medical restrictions. The arbitrator was alive to the issue of whether the RS Socket Operator position could be modified to accommodate the applicant's disability-related needs, and in this regard the only evidence provided by the applicant as to his accommodation needs was for the use of an ergonomic chair to take "micro-breaks". The arbitrator noted that, apart from a brief doctor's note expressing the applicant's need for an ergonomic chair, there was no evidence before him to support that the use of this chair would have enabled the applicant to perform the job within his restrictions. The union's evidence was primarily based upon the fact that the applicant had been able to perform the essential duties of the job for several months while having use of a co-worker's ergonomic chair. However, the arbitrator heard and accepted the evidence of the occupational therapist that an employee may be able to perform a job beyond his medical restrictions for a short period of time, but that this was not sustainable. No expert evidence was called by the union to refute the occupational therapist's evidence.

22It is clear that the arbitrator accepted the evidence of the occupational therapist who had reviewed a large number of jobs and found them to be beyond the applicant's permanent medical restrictions. In the face of this evidence, and with the exception of the applicant's assertion about the ergonomic chair, no contrary evidence appears to have been presented to indicate that any other modifications or accommodations would have enabled the applicant to perform the essential duties and requirements of the RS Socket Operator job or any other job at the respondent's plant for which he appropriately may have been considered. The evidence before the arbitrator indicates that as a result of a WSIB mediation in June 2005, the accommodation search was narrowed to focus on two specific jobs, the RS Socket Operator job and the PT Cruiser Socket Line Assembly job. The arbitrator's decision does not indicate that the union advanced any modifications or accommodations that would have enabled the applicant to perform the PT Cruiser Socket Line Assembly job, or any modifications or accommodations that would have enabled him to perform the RS Socket Operator job other than the use of an ergonomic chair. There also is no indication that the union or the applicant identified any other positions that he could have performed within his restrictions, with or without modification or accommodation.

23As a result, I find that the accommodation allegations raised in the Application were appropriately dealt with in the arbitration proceeding, and I accordingly dismiss this part of the Application.

HARASSMENT ALLEGATIONS

24As stated above, the harassment allegations as set out in paragraphs 3 and 7 of the complaint allege that the applicant experienced harassment by his supervisor when working in the RS Socket Operator position and that this harassment was not appropriately dealt with by management.

25The alleged harassment appears to have occurred in the period leading up to June 2004, when the applicant was given a verbal warning related to starting and stopping times, and culminated in the applicant's three day suspension in September 2004 when he refused to attend a meeting to address his absenteeism. The applicant pursued his harassment allegations through correspondence to various members of management during the period from June to October 2004.

26On October 12, 2004, the applicant was advised that an investigation into his allegations would be conducted. This investigation found that there were no factual grounds for the applicant's allegations. A summary of the investigation dated July 26, 2005 was provided to the applicant, to which he responded by letter dated September 26, 2005. The applicant's complaint to the Commission, which raises the harassment allegations and management's failure to appropriately deal with them, was filed on January 9, 2007, over two years after the underlying incidents of alleged harassment and almost a year and a half after the applicant received the results of the investigation.

27This Application was filed with the Tribunal pursuant to s. 53(3) of the Code, which is part of the "transition provisions" that address the transfer of complaints filed with the Commission to the new process at the Tribunal. These transition provisions state that the new Part IV of the Code applies to Applications filed under the transition provisions: see s. 53(6). The new Part IV of the Code requires that an Application be filed within one year of the last incident to which the Application relates (ss. 34(1)(a) and (b)) and also gives the Tribunal a discretion to accept an Application after the expiry of the one year time limit, if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay (s. 34(2)).

28In these circumstances, the Tribunal requests submissions in writing from the parties on the following issues:

1. Do the provisions in ss. 34(1)(a) and (b) and 34(2) apply to a transition Application filed under s. 53?
2. If they do, should the one year period for a transition Application be calculated from the time that the Application is filed or from the time of the filing of the underlying complaint upon which the Application is based?
3. Was Mr. Boncori's Application filed within one year after the last incident to which it relates?
4. In calculating the time period, can or should the Tribunal consider the harassment allegations separately from the other allegations in Mr. Boncori's Application, which have now been dismissed?
5. If the Application was filed beyond the one year time period, was this delay incurred by Mr. Boncori in good faith?
6. If the Application was filed beyond the one year time period, would any substantial prejudice result to any person affected by the delay if the Tribunal allowed the remainder of the Application to proceed?

29The schedule for the parties to make their written submissions in response to these questions is set out in the Order, below. Where possible, it is requested that these submissions be filed with the Tribunal electronically.

ORDER

30The Tribunal makes the following order:

1. The Tribunal dismisses the Application pursuant to s. 45.1 of the Code, with the exception of the harassment allegations in paragraphs 3 and 7 of the complaint dated January 9, 2007.
2. The parties are to make written submissions in response to the questions set out in paragraph 28 above, including the filing of any relevant evidence and caselaw, in accordance with the following schedule: i. The respondent shall serve and file its submissions by no later than November 7, 2008; ii. The applicant shall serve and file his submissions by no later than November 21, 2008; and iii. The respondent shall serve and file any reply by November 28, 2008.