Bradshaw v. Complex Services, 2010 HRTO 1215

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Chris-Ann Bradshaw Applicant

-and-

Complex Services Inc. Respondent

AND B E T W E E N:

Chris-Ann Bradshaw Applicant

-and-

Ontario Public Service Employees Union, Mario Posteraro, Terry Moore and Patricia Habermann Respondents

Interim Decision

Adjudicator: David Muir Date: May 31, 2010 Citation: 2010 HRTO 1215 Indexed as: Bradshaw v. Complex Services

1These are two Applications filed June 28, 2009 under section 53(5) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant alleges discrimination in employment on the basis of disability by her employer and several of its employees (the employer Application) and on the same grounds in respect of vocational association by the respondent, Ontario Public Service Employees Union (OPSEU) and some of its officials (the union Application). This Interim Decision deals with Requests for Order During Proceeding (Requests) made by the respondents in both Applications.

2The union respondents state that the issues raised in these Applications have already been resolved through various grievances filed by the applicant or are being resolved in grievances that remain outstanding. The respondents state that a number of grievances have been filed in respect of the applicant’s allegations of discrimination and other issues. The union respondents state that the scope of the grievances includes all of the facts, issues and allegations raised in the human rights application against the employer. The respondent union states that these Applications should be deferred pending the outcome of the remaining grievances which have been scheduled for hearing.

3The employer respondents make a number of requests:

a. Correct the style of cause to replace the Ontario Lottery and Gaming Corporation with Complex Services Inc.

b. Remove the personal respondents as parties and dismiss the Application immediately as against them;

c. Strike the allegations in the Application that have been appropriately dealt with in another proceeding; and

d. Dismiss the Application as an abuse of process or, in the alternative, defer the Application pending the outcome of upcoming arbitration hearings.

4The applicant opposed the Requests to dismiss or defer in large part, but did withdraw certain of her allegations on the basis that those matters had been appropriately dealt with elsewhere. The applicant also opposed the Request to remove the personal respondents and amend the style of cause in the employer Application.

5The human rights complaints forming the subject matter of these Applications were filed with the Ontario Human Rights Commission in September 2007. The applicant alleged in her complaints that she is a person with a disability. The applicant was injured in an automobile accident in November 2001. The applicant states that from 2001 to September 2006, the employer accommodated her disabilities appropriately.

6In the complaint made about the conduct of her employer and its employees (the employer complaint), the applicant alleged that after she had made a report about another employee’s conduct in respect of non-Code related matters, the accommodations that had been provided to her were no longer available. The applicant characterizes the employer’s subsequent behaviour as discriminatory, harassing and in part reprisals for her asserting her rights under the collective agreement as well as the Code.

7Taking into account the withdrawal by the applicant of certain allegations as noted above, the following issues remain:

a. The applicant alleges that on February 2, 2007, she was disciplined for making a false report when she complained that she was being denied appropriate accommodations for her disability.

b. The applicant alleges that when she returned to work from a medical leave on August 21, 2007, none of the accommodations discussed and agreed at a meeting on August 17, 2007 were initially in place. After a number of phone calls by the applicant, the accommodations were provided.

c. The applicant alleges that on August 22, 2007, she was told by management that she was only entitled to one 15 minute break as she was only working four hour shifts. The applicant alleges that this had not been the employer’s practice and that this was direct discrimination or a reprisal on the part of the employer.

d. On August 24, 2007, the applicant notified the employer that there were no designated parking spots for persons with disabilities in the South parking lot and that there should be some there. The applicant alleges that in response the employer asked for documentation with respect to her “handicapped sticker”. The applicant alleges that the issue of her need for a designated parking space had been discussed and agreed two years previously and had not been an issue. The applicant states that on August 25, 2007, the respondent withdrew its request for further documentation. The applicant alleges that on September 5, 2007, she was informed that she would no longer be allowed to park on company property as an accommodation.

e. The applicant alleges that she was improperly denied a position as an investigator because the employer perceived that she could not perform the duties of the position with her medical restrictions.

8In the complaint underlying the union Application, the applicant alleged that the respondent union failed to pursue a grievance she filed related to the discipline imposed on her by the employer allegedly in response to her complaint about the employer’s failure to accommodate her on February 2, 2007.

9More generally, the applicant also alleged that by its failure to participate in her return to work process the respondent union is allowing the employer to continue its discriminatory practices.

10The applicant in the context of this Request re-framed the issues somewhat:

a. Whether the employer respondents failed to accommodate the applicant to the point of undue hardship in September 2007 when it failed to provide suitable handicapped parking;

b. Whether the employer reprised against the applicant in revoking her parking accommodation;

c. Whether the employer respondents discriminated against the applicant on the basis of disability in modifying the length of her break times;

d. Whether the employer discriminated against the applicant by refusing to assign her to the investigator position; and

e. Whether the applicant’s union discriminated against her on the basis of disability by consistently refusing to advance her grievances.

Should these Applications be dismissed or deferred?

11The applicant has filed a large number of grievances – some 22 in total. Many of these have been resolved, some are still pending. Several have been filed since the complaints underlying these Applications were filed with the Commission. Many of these latter grievances raise issues similar to those raised in the Applications, in the sense that they allege a failure on the part of the employer to accommodate her disability; harassment; and other forms of discrimination in respect of disability.

12The employer respondents state that these Applications should be dismissed in their entirety as an abuse of process on the basis that the applicant is forum shopping. While the applicant has vigilantly asserted her rights under the collective agreement, I am not satisfied that these Applications constitute an abuse of the Tribunal’s process nor is the applicant forum shopping. While I find that it would be appropriate to defer them pending the resolution of the outstanding grievances, the issues raised here are not identical to any of the pending or outstanding grievances.

13In Baghdasserians v. 674469 Ontario, 2008 HRTO 404, the Tribunal made the following general comments about deferral at paras. 18-20:

Deferral of an application ensures that proceedings dealing with the same issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law. However, deferral is not automatically invoked simply because the parties are involved in other legal proceedings.

Some of the factors that may be relevant in deciding whether to defer consideration of an application before the Tribunal are the subject matter of the other proceeding, the nature of the other proceeding, the type of remedies available in the other proceeding, and whether it would be fair overall to the parties to defer, having regard to the status of each proceeding and the steps that have been taken to pursue them.

14As indicated above, I am satisfied that it would be fair, just and expeditious to defer these Applications pending the resolution of the outstanding grievances filed by the applicant and her bargaining agent. As noted earlier, the applicant has filed 22 grievances, many of which raise issues similar to those articulated in these Applications. Most of those grievances have been dealt with in one way or the other and the applicant has withdrawn a number of the allegations made in the Applications on the basis that they have been dealt with elsewhere.

15There are seven outstanding grievances, several of which raise ongoing disputes related to workplace accommodations for the applicant. Although some of them were filed after these complaints were launched at the Commission, I find they engage the factors considered under section 45.

16I do not interpret the provision as requiring the conclusion, implicit or not, that the other proceeding must potentially dispose of all of the issues in the Application before deferral is appropriate. To my mind the considerations at play are ultimately practical ones involving a consideration of the issues in dispute in the various proceedings, the nature of those proceedings, the status of those proceedings and the steps taken by the parties in the other proceeding.

17In this case while the issues as articulated by the applicant are not precisely the same as the issues in the pending grievances, some important underlying issues appear likely to be common to both sets of proceedings. For example, the applicant asserts that she is a person with a disability. It is not clear that this is necessarily conceded by the respondents. More importantly the nature and extent of the applicant’s disability and the nature of the accommodations that she might require are almost certainly issues in several of the grievances which are ongoing. The litigation of these issues in two or more different proceedings is hardly an efficient use of adjudicative resources and could lead to inconsistent results.

18There is no concern that the other proceeding can not adequately deal with the subject matter of the grievances as they are related to these Applications. A labour arbitrator has not only the authority but the obligation to consider and apply the Code to matters before the tribunal and an arbitrator is able to fashion appropriate remedies. I also note that four of the pending arbitrations are scheduled for hearing already or in some cases should have already begun. A hearing of these Applications cannot now be scheduled before the early part of 2011. As a practical matter, some of these arbitrations may have concluded before the hearing of this Application has begun. I have also considered that the parties will have several opportunities in the context of these arbitrations to come to a sensible global settlement of the ongoing workplace accommodation dispute. All of these factors lead me to the conclusion that the deferral of these Applications pending the outcome of the various ongoing arbitration proceedings.

19Finally on this aspect of the respondent employer’s Request, the respondents state that the allegations respecting the discipline in February 2007, the failure to post the applicant to the investigation position, as well as the various allegations related to designated parking spaces were all the subject of grievances that were not processed by the applicant or her trade union and, in effect, abandoned. The employer respondents states that the abandonment of a grievance cannot be distinguished from a withdrawal which the Tribunal has concluded might, in some circumstances support an early dismissal pursuant to section 45.1. The respondents further state that the applicant would have been aware of the time limits in the collective agreement and the consequences of not meeting them, having participated in the negotiation of the collective agreement on behalf of the union. The respondents state that having knowingly permitted the time for further steps in the grievance procedure to expire, the applicant must be taken to have implicitly withdrawn these grievances.

20I am not persuaded by the respondent employer’s position in this regard. I accept the proposition that an abandonment may in some circumstances support a finding that an Application is an abuse of process or appropriately dealt with under section 45.1. However, as I read the cases relied upon by the respondents, in particular Passmore v. P&H Foods, 2009 HRTO 1378, the consent of the applicant is required and, where the applicant agrees, an abandonment can be seen in the same light as a settlement. However, it is key to the application of section 45.1, as the law now stands, that there be consent of the applicant. At a minimum in this case there appears to be a factual dispute about the applicant’s consent to the abandonment of these grievances which may require evidence. In effect the applicant alleges that the union simply failed to process some of these grievances despite her efforts to find out what was happening to them. I find that the most fair, just and expeditious manner to proceed is to defer this issue as well. The respondents may raise the issue again at the appropriate time.

Identity of Corporate Respondent

21The employer respondent requests that the style of cause be changed by substituting the Ontario Lottery and Gaming Corporation (“OLG:) with Complex Services Inc. (“Complex”) on the basis that Complex was the applicant’s employer. The applicant objects to the change but states that she will consent to an order adding Complex as a respondent.

22The applicant states that OLG exerts significant control over the applicant and Complex Services. The OLG website states that it owns four casinos including the one where the applicant works. The applicant states that while the operations of these casinos have been contracted out to third-parties such as Complex Services, it still maintains responsibility for, amongst other things, parking spaces.

23The OLG states that it exercises no control over Complex Services or the applicant in respect of the employment relationship including the obligation to accommodate the applicant’s disabilities. OLG states that not only is it a stranger to the dispute and knows nothing about the applicant’s issues, there is no basis upon which it could be found to be liable for a failure to accommodate a disability of which it was never made aware.

24I agree with the applicant that the fact that OLG was not the applicant’s employer at common law is not determinative of the issue, the notion of employment under the Code being considerably broader than that. That said, however, I am not satisfied that there is any reason to leave the OLG as a respondent. The applicant concedes that her employer is a proper respondent and should be added, but offers no compelling reason to leave OLG as a respondent and I find that it would be inconsistent with the fair, just and expeditious resolution of the dispute to do so. The style of cause is amended to substitute Complex Services for the respondent OLG.

Removal of Personal Respondents

25The employer respondents state the individuals named as respondents to the employer Application should be removed as parties. The respondents rely upon the principles outlined in Persaud v. Toronto District School Board, 2008 HRTO 31 at paras 4 and 5:

Pursuant to Rule 14(b) of the Tribunal’s Rules of Practice, the Tribunal has the power to “add or remove a party”. In exercising this power in relation to the potential removal of personal respondents, the Tribunal may want to have regard to similar principles as have been applied when deciding whether to exercise the Tribunal’s discretion to add a personal respondent. As stated in Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 14 at para 42:

The unnecessary naming of personal respondents is a practice to be discouraged, as this serves to unnecessarily add to the complexity of proceedings and can often operate as a roadblock to resolution. Pursuant to section 45(1) of the Code, a corporation is deemed to be liable for “any act or thing done or omitted to be done in the course of his or her employment by an officer, official, employee or agent”. Where there is no issue as to the ability of a corporate respondent to respond to or remedy an alleged Code infringement and no issue raised as to a corporate respondent’s deemed or vicarious liability for the actions of an individual who is sought to be added as a personal respondent, then in my view the individual ought not be added as a personal respondent in the absence of some compelling juridical reason. A compelling juridical reason may exist, for example, where it is the individual conduct of a proposed personal respondent that is a central issue as opposed to actions which are more in the nature of following organizational practices or policies or where the nature of the alleged conduct of a proposed personal respondent may make it appropriate to award a remedy specifically against that individual if an infringement is found.

Applying these principles to the Tribunal’s power to remove a personal respondent from a proceeding, the following non-exhaustive list of factors may be helpful in assessing whether a personal respondent should be removed:

1. Is there is a corporate respondent in the proceeding that also is alleged to be liable for the same conduct?

2. Is there any issue raised as to the corporate respondent’s deemed or vicarious liability for the conduct of the personal respondent who sought to be removed?

3. Is there is any issue as to the ability of the corporate respondent to respond to or remedy the alleged Code infringement?

4. Does any compelling reason exist to continue the proceeding as against the personal respondent, such as where it is the individual conduct of the personal respondent that is a central issue or where the nature of the alleged conduct of the personal respondent may make it appropriate to award a remedy specifically against that individual if an infringement is found?

5. Would any prejudice be caused to any party as a result of removing the personal respondent?

In considering whether any compelling reason exists to continue the proceeding against a personal respondent, one way of approaching this question is to ask whether it is necessary to involve this person as a party in order to have a fair, just and expeditious resolution of the merits of the complaint.

26There is no issue with respect to the first three factors set out above. The individual respondents in the employer Application are or were employees of the respondent and there is no issue that there is a corporate respondent which is responsible for their actions and which can remedy any violation of the Code that might be found to have occurred.

27The respondents state that there is no prejudice to any party in that the applicant has made no allegations against the individuals in their personal capacity. The respondents also state that the three individuals are key witnesses and accordingly there is no need to name them as respondents.

28With respect to the final factor, the respondents state that as the individual conduct of these respondents is not a central issue in the Application there is no compelling reason for them to remain as respondents. The allegations of discriminatory conduct, state the respondents, are all allegations that speak to the vicarious liability of the corporate respondent.

29The applicant states that the historical conduct of the three individuals is compelling enough to make it appropriate to award a remedy against the respondents in the event that a violation is found.

30I find that it is fair, just and expeditious to remove the individual respondents. Despite the applicant’s position, there is really only one allegation made regarding the three individuals, that being around the parking accommodation issue. It seems unlikely based on that single allegation that a remedy against the individuals would be likely found to be appropriate. Otherwise, the allegations relate to an ongoing dispute about appropriate accommodations and there is nothing else in the material which provides a compelling basis for naming these individual respondents.

31The Tribunal makes the following Orders:

1. These Applications are deferred pending the conclusion of the arbitration of grievances identified by the parties as follows: 2008-0278-0005; 2008-0278-0003; 2007-0278-0013; 2007-0278-0012. Any party wishing to re-activate these Applications may do so in writing in accordance with the Tribunal’s Rules.

2. The respondent, Ontario Lottery and Gaming Corporation is removed and Complex Services Inc. is added as a corporate respondent in TR-0819-09 and the style of cause amended accordingly.

3. The individual respondents are removed from Application TR-0819-09 and the style of cause amended accordingly.