Dubbin v. Toronto Hydro-Electric Systems, 2010 HRTO 110

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Stephen Dubbin

Applicant

-and-

Toronto Hydro-Electric Systems

Respondent

-and-

Canadian Union of Public Employees, Local One

Intervener

INTERIM DECISION

Adjudicator: Sherry Liang

Date: January 18, 2010

Citation: 2010 HRTO 110

Indexed as: Dubbin v. Toronto Hydro-Electric Systems

1This is an Application filed on April 21, 2009, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Application names Toronto Hydro-Electric Systems (“Toronto Hydro”) and nine individuals as respondents. By Interim Decision dated November 10, 2009, 2009 HRTO 1918, the Tribunal directed Toronto Hydro to file a Response. It also directed another proposed individual respondent, John Camilleri and/or the applicant’s union, the Canadian Union of Public Employees, Local One (“CUPE”) to make submissions on whether it is appropriate to add him as a respondent to the Application. The Tribunal directed the applicant to respond to the submissions of the other parties through the filing of a Reply.

2As described in the Tribunal’s Interim Decision in this matter of September 2, 2009, 2009 HRTO 1394, the applicant’s employment was terminated for misconduct. The termination letter provides details of misconduct unrelated to drug use. The applicant alleges that he has a drug addiction that is a disability and that the company should have accommodated his disability. The respondent and CUPE state that the applicant did not disclose his alleged disability until after the events giving rise to the termination.

3The Tribunal has received a Response from Toronto Hydro, submissions from CUPE and John Camilleri and a Reply from the applicant.

4Having regard to the submissions and the material before it, the Tribunal removes the nine individuals named in the Application as respondents. Further, it does not add John Camilleri as a respondent.

5In its November 2009 Interim Decision, the Tribunal described the principles relevant to its determinations about whether to add or remove respondents. It is unnecessary to repeat those here.

6At their highest, the allegations against the individual respondents, apart from John Camilleri, are that, as managers or other personnel with Toronto Hydro, they should have taken more steps to accommodate a disability, and that they participated in a failure to accommodate. Toronto Hydro accepts that it would be deemed liable for the actions of these individuals. There is no question that Toronto Hydro would be able to provide an adequate remedy if liability is established. I see no compelling reason to continue the proceeding against these personal respondents, and no prejudice as a result of removing them as respondents.

7The applicant acknowledges that these individuals are not necessary respondents in his Reply, when he states that he accepts that “the allegations are properly directed at the Company and leaves it to the Tribunal to determine which persons should be involved in the next steps of mediation and/or hearing.”

8With respect to John Camilleri, the allegations are that, as the applicant’s union representative, he ignored the applicant’s drug addiction in the meetings and grievance following his termination from employment. It is alleged that Mr. Camilleri should have pursued the duty to accommodate for a disability.

9CUPE submits that even if all the allegations against this personal respondent are assumed to be true, the Application does not raise a prima facie case that he discriminated against the applicant on the basis of disability or on any other basis.

10The Tribunal agrees that the allegations against Mr. Camilleri do not provide a basis for a claim of discrimination under the Code. The failure or refusal to take forward a human rights issue, such as accommodation of a disability in the workplace, is not, in and of itself, a breach of the Code. There may be many reasons that have no discriminatory overtones why a union might choose not to pursue a human rights claim on behalf of an employee. There must be a claim, and a factual foundation for the claim, that the failure to act was based on discriminatory factors: Baylett v. Universal Workers Union, 2009 HRTO 700; Traversy v. Mississauga Professional Firefighters’ Association, 2009 HRTO 996.

11I also note that in his Reply, the applicant describes his intent in the filing of this Application as an effort to “engage the Company in a review of the circumstances leading up to his termination with a goal of reinstatement.” He also states that he has filed an application to the Ontario Labour Relations Board (the “Board”) alleging that CUPE did not properly represent the applicant in his termination grievance.

12In this context, the allegations against Mr. Camilleri may be viewed as part of the applicant’s contention that the union failed to represent him properly as bargaining agent, within the meaning of the Labour Relations Act, 1995, S.O. 1995, c. 1, Sch. A, which contention is being pursued before the Board.

13I am accordingly satisfied that there is no basis to add Mr. Camilleri as a respondent to the Application.

14CUPE has filed a Request to Intervene, to which no party has objected. On the basis of the material before me, the nature of the issues raised and CUPE’s role as the bargaining agent or former bargaining agent of the applicant, the Tribunal grants leave to intervene. The nature and extent of CUPE’s participation at the hearing will be determined by the Vice-Chair assigned to hear the matter.

15Given the consent of the parties, this matter will be scheduled for mediation.

16I am not seized of this matter.