Rodgers v. Hydro One Networks, 2009 HRTO 1871

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Mark Rodgers Applicant

-and-

Hydro One Networks Inc., Tom Parkinson, Pat Johnson, Sharon Maloney, Irene Manual, Terry Crawford, Laurie Skinner and Brent Clarke Respondents

INTERIM DECISION

Adjudicator: Brian Sheehan Date: November 4, 2009 Citation: 2009 HRTO 1871 Indexed as: Rodgers v. Hydro One Networks

Appearances By:

Mark Rodgers, Applicant ) Hugh Scher, Counsel, Hydro One Networks Inc., Tom Parkinson, ) Dana McDonald, Pat Johnson, Sharon Maloney, Irene Manual, ) Counsel Terry Crawford, Laurie Skinner and Brent Clarke, ) Respondents )

1This Interim Decision concerns a request by the respondents that, pursuant to s. 45.1 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), the Application be dismissed on the basis that it had been appropriately dealt with in another proceeding. An oral hearing took place to deal with the submissions of the parties on this matter.

Background

2The applicant began working with Hydro One Networks Inc. ("Hydro One"), the respondent employer, in 1990. For an extended period of time, he had been employed as a Stockkeeper working out of a warehouse located in Brantford.

3The applicant suffers from coronary artery disease for which he underwent triple by-pass surgery. In 2004, the applicant went off work on sick leave.

4In March 2005, Hydro One completed a consolidation of its warehouse operations, which resulted in the closure of virtually all its regional warehouses and the creation of one main centralized warehouse in Barrie. The Brantford warehouse was closed as part of that consolidation.

5The applicant is covered by a provincial wide collective agreement between Hydro One and the Power Workers Union ("PWU"). Article 11 of that collective agreement sets out a rather extensive redeployment process to deal with situations of an "over complement" of employees at a particular worksite. Under the provisions of Article 11, employees designated as being "over complement" at a particular location are provided an opportunity to choose an alternative work location based on their relative seniority. Given his relative seniority, the applicant would have been required to transfer to the Barrie warehouse location.

6In March 2005, the applicant advised Hydro One that on advice of his doctors, he was refusing to participate in the Article 11 redeployment process. The applicant submitted two medical reports which suggested that he should not be subjected to the forced relocation of his job and that his work location should be within a reasonable distance of his residence in Tilsonburg.

7Hydro One took the view that the submitted medical reports failed to establish that there was "coherent medical evidence" to support the applicant's assertion that his disability required him to work within a reasonable commuting distance from his residence.

8On March 22, 2005, the PWU filed a grievance alleging that Hydro One had failed to accommodate the applicant's disability and thereby violated the collective agreement and the Code.

9The grievance arbitration provisions under the Hydro One/PWU collective agreement require the parties to exchange extensive pre-hearing briefs, setting out the relevant facts and legal arguments, including case law. The arbitration hearings take place on an expedited basis with oral evidence only being called if the arbitrator deems it necessary.

10The applicant's grievance was scheduled to be heard by Arbitrator Martin Teplitsky on September 24, 2005. At that time the parties entered into an interim accommodation agreement which provided for, amongst other things, the following:

• The applicant was assigned to a Field Business Clerk position in Beachville for a one-year period.
• The applicant's wages would be "red circled" at the Stockkeeper rate of pay.
• The applicant received credit for a number of sick days he had utilized during the period in dispute.
• Hydro One, PWU and the applicant agreed to make their best efforts to find a permanent position for the applicant in accordance with the identified workplace restrictions.

11The applicant was a signatory party to the interim accommodation agreement.

12Subsequently, the PWU requested that the hearing before Arbitrator Teplitsky be reconvened to deal with the claim that Hydro One had failed to use its best efforts to find the applicant a permanent position within his restrictions.

13The arbitration hearing was scheduled for December 1, 2006. That hearing was, however, adjourned, as at the time, the parties were working towards finding a permanent position for the applicant.

14On January 11, 2007, the applicant was placed in a permanent position of Field Scheduling Clerk. The applicant's rate of pay, on a without prejudice basis, was maintained at his prior "red circled" Stockkeeper's hourly rate. His hours of work in that position, however, were only 35 hours per week, in comparison to the 40 hours per week he worked as a Stockkeeper.

15There was a remaining issue of the applicant's ongoing entitlement to the "red circling" of his rate of pay. By decision dated March 7, 2007, Arbitrator Teplitsky, accepted the position of PWU that the applicant was entitled to the Stockkeeper rate of pay for the Field Scheduling Clerk position until the pay rate for that position exceeded the Stockkeeper rate. In reaching that conclusion, Arbitrator Teplitsky indicated that the medical evidence suggested that the applicant's health did not permit a work relocation to Barrie.

16The applicant filed his complaint with the Ontario Human Rights Commission on January 12, 2007. He had previously filed a complaint with the Ministry of Labour pursuant to the provisions of the Occupational Health and Safety Act suggesting that the actions of the respondents had breached the provisions of that Act. Additionally, he filed a claim under the Workplace Safety and Insurance Act seeking benefits on account of post-traumatic stress associated with the efforts of Hydro One to transfer him to Barrie.

The Application

17The OHRC complaint filed by the applicant which form the subject-matter of this Application was comprised of two distinct components. A primary focus of the complaint related to allegations that Hydro One failed to accommodate the applicant's disability in connection with the reorganization of its warehouse operations. The complaint, however, also placed reliance on alleged statements of certain of the named individual respondents as the framework for an argument that the applicant had been subjected to harassment on account of his disability. For the reasons set out below, I find s. 45.1 of the Code prevents the Tribunal from considering the Application as it relates to accommodation of the applicant's disability. At the same time, the harassment allegations raised in the complaint may proceed.

Section 45.1 Overview

18Section 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.

19In Campbell v. Toronto District School Board, 2008 HRTO 62, the Tribunal set out the following guiding principles regarding the application of section 45.1:

• Section 45.1 gives expression to a legislative intent to avoid the duplication of proceedings and the re-litigation of issues that have been dealt with elsewhere;
• The discretion given to the Tribunal in s. 45.1 is at least as broad as the doctrines of issue estoppel and abuse of process;
• In determining whether another proceeding has appropriately dealt with the substance of the application, the Tribunal should not be overly technical;
• The Tribunal does not act as an appellate court from the decisions of other tribunals, and the Tribunal need not be satisfied that it would have reached the same conclusion as that reached in the other forum.

20In Campbell, the Tribunal suggested it was helpful to view s. 45.1 in two parts (1) whether there was another "proceeding" and (2) whether it "appropriately dealt with" the "substance" of the Application.

Was There Another Proceeding?

21The issues raised in the grievance filed by PWU on behalf of the applicant were primarily resolved by the settlements reached by the parties. In particular, the parties agreed on interim accommodation measures regarding the applicant. Subsequently, they reached agreement on the issue of a permanent position for the applicant. The only matter that was determined by a decision of Arbitrator Teplitsky was the ongoing appropriate rate of pay applicable to the applicant.

22There is no dispute, and this point was conceded by counsel for the applicant, that a labour arbitration decision constitutes a "proceeding" for the purposes of the s. 45.1. The applicant, however, suggested a settlement of a grievance does not necessarily constitute a "proceeding".

23The Tribunal addressed this issue directly in Dunn v. Sault Ste. Marie (City), 2008 HRTO 149 it was noted:

[37] I will deal first with whether a settlement of a matter commenced before a different tribunal may be a "proceeding" that has "dealt with the substance" of the complaints within the meaning of the section. I find that s. 45.1 may apply to settlements of proceedings under other statutory schemes. This conclusion is supported by both the wording and the purposes of s. 45.1. The provision refers to a "proceeding" having "dealt with" the matter, rather than using narrower words that would only encompass adjudication like "decisions" or "reasons". More important, the purpose of avoiding the duplication of proceedings and ensuring finality in litigation would be severely undercut if the section applied only to decisions. Most litigation ends in settlement. To be effective, settlements must be final, since otherwise the parties would have no incentive to make an agreement to end litigation. An interpretation of s. 45.1 that did not cover settlements would discourage parties from working to resolve human rights proceedings without recourse to litigation.

24As was also observed in Dunn, an underlying theme of the grievance/arbitration model set out in the Labour Relations Act is the promotion of the prompt and informal resolution of workplace disputes. The importance of settlement of grievances by the parties themselves in a unionized workplace cannot be understated.

25In the case at hand, it is also noteworthy that the settlements reached by the parties regarding the accommodation of the applicant's disability occurred at the doorstep of the arbitration hearings. In particular, the interim accommodation agreement regarding the applicant was reached at the initial arbitration hearing. Similarly, the parties were scheduled to appear before Arbitrator Teplitsky a second time regarding the issue of a permanent position for the grievor but that hearing was adjourned because the likelihood of the parties themselves reaching a resolution was high. The settlements reached by the parties were thus intertwined with the ongoing adjudication of the applicant's grievance. It would serve no purpose to suggest that for the purposes of s. 45.1, those settlements were not part of the arbitration proceeding associated with that grievance.

Was the Substance of the Accommodation Issues Appropriately Dealt With?

26The Tribunal in Campbell, found the following analysis of the British Columbia Human Rights Tribunal in Villella v. City of Vancouver and others (No.3), 2005 BCHRT 405, 2005 B.C.H.R.T 405 ("Villella") of this assistance in determining whether the matter in question had been appropriately dealt with in another proceeding:

In considering this question, I have found it helpful to consider the definitions of "substance" and "appropriately". The Concise Oxford Dictionary defines "substance", so far as is relevant to the usage under consideration, as follows:

3. theme, subject , material as opposed to form...4. Essential nature...:essence or most important part of anything, pith, purport, real meaning:...generally, apart from the details....

"Appropriate" is defined as follows:

... belonging or peculiar (t); suitable or proper (to, for) hence-ly

These definitions suggest that in considering whether the substance of the complaint has been appropriately dealt with, the Tribunal should consider whether the complaint, in its essence or pith, was dealt with in a manner suitable or proper to that essence or pith. This, in turn, suggests that the appropriate manner of dealing with the complaint may differ depending on the essential nature of the complaint in issue. Further, the Tribunal should be concerned with the substance as opposed to the form of the matter in which the complaint was dealt with, focusing on the substance as opposed to the details of the matter. The question is not, as submitted by Mr. Valhalla, whether the complaint was derived decided correctly in the other forum. (emphasis added)

27It is clear that the litigation associated with the PWU grievance filed on behalf of the applicant dealt with the essence of the accommodation issues raised in his complaint. The issues raised by the parties during the litigation of that grievance were almost exclusively related to the parties' respective obligations with respect to the duty to accommodate his disability.

28In terms of whether those issues were dealt with appropriately, or in a suitable manner, a review of the written submissions of the parties submitted as part of the expedited arbitration process clearly reveals that the relevant duty to accommodate arguments were advanced on the behalf of the applicant by the PWU.

29The interim settlement reached by the parties on September 24, 2005 also bears witness to the fact that the issues associated with the applicant's disability were appropriately dealt with by the parties. In particular, the settlement recognized the ongoing obligation on the parties to accommodate the applicant's disability and imposed on all three parties a requirement to use their "best efforts" to find a permanent position for the applicant that accorded with his workplace restrictions.

30The parties ultimately were able to reach agreement on a permanent resolution for the applicant which recognized that the applicant's disability argued against the strict application of the redeployment provisions under Article 11 of the collective agreement and that he had had to be accommodated and placed in a permanent position within proximity to his home. It further provided certain wage protection guarantees for the applicant.

31I am satisfied that a review of the record clearly indicates that the "appropriate human rights principles" were dealt with by the parties throughout the litigation of the applicant's grievance.

32With respect to various arguments advanced by the applicant there may situations where additional arguments theoretically could have been advanced or argued as part of the prior proceeding. The Tribunal, however, has to determine whether, as a whole, the substance of the human rights issues were appropriately dealt with in the prior proceeding and is not necessarily worthwhile to parse the prior proceeding to see if every possible human rights argument was advanced. As noted in Campbell, s. 45.1 does not require the Tribunal to act like an appellate court. That being said, I will deal with some of the matters raised by the applicant.

33With respect to the assertion by the applicant that significance should be given to the fact that the applicant was not a "party" under the grievance arbitration process, it is noted the applicant was a signatory party to the interim settlement reached on September 24, 2005. More importantly, as suggested in Campbell, the Tribunal's analysis under s. 45.1 is not synonymous with, or restricted to, an issue estoppel type of analysis. The issue under s. 45.1 is not whether the same parties were involved in the prior proceeding but whether the substance of the complaint was appropriately dealt with in that prior proceeding.

34The argument that the applicant should have had the opportunity to retain his own independent counsel during the grievance arbitration process would have been potentially more relevant in the context of the trade union's duty to fair representation obligations pursuant to Section 74 of the LRA. That being said, there may exist situations where the adequacy of the representation received by an applicant in the prior proceeding may impact on whether the pertinent human rights issue were appropriately dealt with in that proceeding. There is, however, absolutely no basis whatsoever in the case at hand to suggest that counsel for the trade union did not advance the relevant human rights issues on behalf of the applicant.

35It was further argued that a particular relevant issue not advanced by PWU during the litigation associated with the applicant's grievance was an argument that Article 11 of the collective agreement as a whole had a discriminatory impact on the applicant. In my view, that argument has to be viewed as being ultimately moot as the settlements reached by the parties and the decision of Arbitrator Teplitsky were premised on the redeployment provisions set out in that Article not applying to the applicant in light of his disability.

36As to the allegation of "discriminatory hiring practices" of Hydro One; it is noteworthy that with respect to this point that PWU in its brief regarding the Hydro One's failure to utilize its "best efforts" to find a permanent position for the applicant expressly referred to a number of the positions that the applicant had unsuccessfully applied for. I would add that there is nothing in the materials filed factually connecting Hydro One's decision not to consider the applicant for the identified positions and his disability.

37In conclusion, therefore, it is my determination that the prior proceeding under the collective agreement appropriately dealt with the issues associated with the obligation of the respondents to accommodate the applicant's disability in connection with the reorganization of Hydro One's warehouse operations.

The Harassment Allegations

38The applicant in his OHRC complaint asserted that there were three separate statements made by members of the management team of Hydro One that constituted a pattern of harassment contrary to s. 5(2) of the Code. In particular reliance was placed on the following purported statements:

• On March 17, 2005 Ms. Pat Johnson in a meeting suggested that "anyone" could get a letter from their doctor.
• On September 21, 2006 Mr. Brent Clarke referred to the applicant's request for an investigation by the Minister of Labour, Occupational Health and Safety Inspector as a "back stab".
• On October 23, 2006 Mr. Laurie Skinner indicated that he did not see the issues raised by the applicant as a health and safety issue but as labour relations issues. Mr. Skinner went on to explain that he wants certain people in certain jobs therefore it not necessary to follow the "process".

39A review of the material filed suggests the question as whether the above statements were in fact made; and, if so, whether they constitute harassment was not addressed whatsoever in the litigation associated the grievance filed on the applicant's behalf. Accordingly, the harassment allegations and arguments raised by the applicant have not been appropriately dealt with as part of a prior proceeding and therefore they are not barred by s. 45.1 of the Code.

ORDER

40The Tribunal dismisses the portions of the Application related to failure to accommodate the applicant's disability pursuant to s. 45.1 of the Code. The Application as it relates to allegations of harassment set out in paragraph 3 of the complaint dated January 12, 2007, will proceed.