Daniel Touseant v. The Corporation of the City of Thunder Bay, 2009 HRTO 2066

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Daniel Touseant

Applicant

-and-

The Corporation of the City of Thunder Bay

Respondent

INTERIM DECISION

Adjudicator: David Shannon

Date: December 3, 2009

Citation: 2009 HRTO 2066

Indexed as: Touseant v. Thunder Bay (City)

AppearanceS BY

Daniel Touseant, Applicant ) Self-represented

The Corporation of The City of Thunder Bay, ) Mandy Fricot, Counsel

Respondent )

introduction

1This is an Application dated November 12, 2008 under section 53(3) of Part VI of the Human Rights Code, R.S.O, c. H.19, as amended, (the “Code”). The underlying complaint in this matter was filed with the Ontario Human Rights Commission on May 9, 2008 and abandoned upon filing this Application.

2The Application alleges discrimination in employment because of disability arising out of a workplace injury suffered by the applicant in 2003. The applicant alleges that he returned to work in 2005 in an accommodated position that was restricted in hours. Since then, he has not been successful in bidding for other jobs which the applicant alleges is due to discrimination by some supervisors, has lost seniority and has been disadvantaged in relation to his entitlement to benefits and statutory holidays.

3The respondent denies the allegations. It alleges the applicant’s hours have been increased as permitted and his lack of success in bidding for other jobs is attributable to the successful candidate’s greater seniority or the applicant’s inability to perform the essential duties of the position sought.

4The Case Resolution Conference (“hearing”) took place on September 10 and 11, 2009 in Thunder Bay and will continue on a date yet to be set by the Registrar-Transition. This Interim Decision provides my reasons on some preliminary Requests including the respondent’s Request to dismiss the Application for failure to establish a prima facie case and case management directions for the resumption of the hearing.

ISSUES

5The respondent objected to two of the applicant’s witnesses on the basis that the witness summaries provided were insufficient. The applicant agreed not to proceed with those witnesses but maintained his right to seek the Tribunal’s permission to call either of the two proposed witnesses at a later point in the hearing.

6On consent of both parties, I ordered that the personal respondents be removed as parties to this Application. The style of cause is amended accordingly.

7On consent of both parties I agreed to bifurcate the hearing. In the first stage of the hearing I will hear evidence and hear submissions with respect to whether there was discrimination and a failure to accommodate the applicant’s disability up to the point of undue hardship. Depending on my determination of that issue the hearing may resume to hear evidence and submissions on remedy.

Request to Dismiss

8There is no dispute the applicant is a person with a disability. Following a grievance alleging his disability was not being accommodated in the workplace the applicant returned to work subject to the provisions of a Workplace Safety and Insurance Board approved accommodation agreement. At the end of receiving applicant’s oral evidence, the respondent asked me to dismiss the Application for failure to establish a prima facie case.

9The Request is allowed in part. As the hearing will continue and I have yet to hear the respondent’s evidence, I will provide very brief reasons for my decision at this point in time.

10The onus is on the applicant to establish a prima facie case of discrimination. In the context of alleged discrimination, the Supreme Court of Canada has described the threshold as “one which covers allegations made and which, if they are believed, is complete and sufficient to justify a verdict in the complainants favour in the absence of an answer from the respondent”: Ontario Human Rights Commission v. Simpsons- Sears, 1985 CanLll 18 (S.C.C.), at para 28. Upon establishing a prima facie case, the burden shifts to the respondent to provide a credible and rational explanation demonstrating, on a balance of probabilities, that its actions were not discriminatory.

11It is well-established that the threshold for establishing a prima facie case of discrimination is not high, discrimination is often not overt, and the respondent may have knowledge of facts or possess evidence of discrimination that is not accessible to an applicant. In many, if not most, cases the burden will shift to the respondent to provide a non-discriminatory reason for its actions.

12The applicant alleges he was prevented from successfully bidding on jobs since entering into the 2005 accommodation agreement. I am satisfied based on the applicant’s own evidence provided in chief and on cross-examination that he was either physically incapable of performing the essential duties of those jobs and that discrimination on the basis of his disability was not a factor in the decision not to award him those positions. The applicant’s refusal, despite the encouragement of his supervisors, to bid on positions within his physical restrictions on the basis that they were “jobs for girls” undermines his allegations that his inability to obtain another position was the result of discriminatory attitudes on the part of the respondent. This aspect of the Application is dismissed.

13However, allegations concerning the alleged discriminatory effect of the accommodation agreement on the applicant’s seniority rights and entitlement to benefits do require a response from the respondent. At this juncture, there must also be further inquiry into whether the agreement was arbitrary, signed under duress, formed under ill will or arose from indirect discrimination. Only the respondent can answer any part this inquiry.

14Whether the respondent discriminated prior to and in the formation of the 2005 accommodation agreement will rely almost exclusively on the respondent’s evidence. How this evidence is produced, and what facts may be inferred will also possibly impact on any allegations of discrimination subsequent to the 2005 accommodation agreement.

15I agree with the respondent’s counsel that to undo accommodation agreements willy nilly would bring the administration of human rights complaints into disrepute. The appropriate time to address the question whether this Tribunal has jurisdiction to hear this matter is best considered in the context of a Request to dismiss the Application under section 45.1 of the Code. I note that respondent’s counsel has filed a Request for Order to dismiss the Application pursuant to section 45.1 of the Code when this Case Resolution Conference reconvenes.

16Section 45.1 states:

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.

17This Tribunal articulated the test for dismissal pursuant to section 45.1 of the Code in Dunn v. Sault Ste Marie(City), 2008 HRTO 149 at paragraphs 34 and 35:

The importance of final and binding settlements in the unionized workplace is articulated in the purposes of the LRA, which include “[t]o promote the expeditious resolution of workplace disputes”. The importance of binding agreements was articulated by the OLRB as follows in TRW Automotive (Kelsey-Hayes Canada Ltd.), [2000] OLRB Rep. July/Aug. 731 at para. 14:

Parties are entitled to rely on agreements freely entered into. Nothing would be more disruptive to orderly labour relations than to permit parties to revoke agreements among employees, their trade union, and their employer into which the parties have entered to settle disputes or potential disputes.

This is true of human rights disputes, in whatever social area they arise. There is a strong public interest in ensuring that when parties freely choose to resolve the substance of a human rights dispute, in whatever forum it is brought, the matter is at an end. This is a fundamental principle that should guide the Tribunal in the interpretation of s. 45.1, because to do otherwise could make the finality of settlements highly uncertain.

18At paragraph 43 this Tribunal also noted the very narrow parameters for hearing an application in these circumstances and their rationale when stating,

The Commission and complainant raise various arguments why the Tribunal should not dismiss these complaints as a result of the previous settlement. They make reference to the process that led to the Minutes of Settlement, including the alleged statements by the Labour Relations Officer. It is, in my view, inappropriate for this Tribunal to engage in any review of the confidential settlement process at the OLRB. Just as the Tribunal is not an appeal body from other tribunals, it does not have a general role in supervising mediation processes at other tribunals, absent exceptional circumstances such as allegations of human rights violations during the settlement process or the absence of another forum in which to raise allegations of duress.

19I will apply the Dunn test when hearing the section 45.1 Request. That is not the test before me now. I must consider whether the applicant established a prima facie case. In relation to the accommodation agreement I am satisfied that he has.

20I will answer whether this Tribunal is the appropriate forum to hear the matter at a later date.