Savard v. Toronto (City), 2010 HRTO 1337

Human Rights Tribunal of Ontario

B E T W E E N:

Michael Savard Applicant

-and-

City of Toronto Respondent

-and-

Canadian Union of Public Employees, Local 79 Intervenor

AND B E T W E E N:

Michael Savard Applicant

-and-

Toronto Civic Employees Union, Local 416 and Dave Hewitt Respondents

-and-

Canadian Union of Public Employees, Local 79 Intervenor

DECISION

Adjudicator: Mary Anne McKellar Date: June 14, 2010 Citation: 2010 HRTO 1337 Indexed as: Savard v. Toronto (City)

APPEARANCES BY

Michael Savard, Applicant | Christopher Newman, Representative City of Toronto, Respondent | Kerri Kitchura, Counsel Toronto Civic Employees Union, Local 416 and Dave Hewitt, Respondents | Howard Goldblatt, Counsel Canadian Union of Public Employees, Local 79, Intervenor | Ken Stuebing, Counsel

Introduction

1These are Applications under section 53(5) of the Human Rights Code, R.S.O. 1990, c.H-19, as amended ("the Code"). They were filed with the Tribunal on February 5, 2009. The underlying complaints to the Commission were filed on March 13, 2008.

2The factual allegations in each of the two Applications are identical. One is against the applicant's employer (the "City") and one is against his bargaining agent ("Local 416") and one of its officers, Dave Hewitt. Any reference to Local 416 in this Decision encompasses both the organizational respondent and Mr. Hewitt.

3The respondents in each case filed responses with the Commission in which they sought early dismissal of the complaints, relying on various grounds, including: delay; the assertion that the subject matter had been and was more appropriately dealt with in another forum (grievance arbitration); and that the complaints did not make out a prima facie contravention of the Code.

Scope of Issues Addressed at the Hearing

4By Confirmation of Hearing Date and Required Preparation, dated October 29, 2009, the Tribunal directed the parties to file written submissions on the preliminary matters and address them at a hearing on March 24, 2009. The preliminary matters were described as follows in the Confirmation of Hearing Date (emphasis in the original):

The respondent City of Toronto has indicated that it will be making a request for an order that the Application against it be dismissed on the basis that the matter has been settled, for lack of timeliness, and for no prima facie case, as set out in submissions already served and filed with the Tribunal.

The respondent CUPE Local 416 has indicated that it will be making a request for an order that the Application against it be dismissed on the basis that the matter has already been dealt with through the grievance procedure and has been settled, for lack of timeliness, and for failure to proceed in the appropriate forum before the Ontario Labour Relations Board, as set out in submissions already served and filed with the Tribunal.

The parties shall file written submissions regarding these requests in accordance with the following schedule:

• By no later than January 29, 2010, the applicant shall serve and file with the Tribunal his submissions in response to the respondents' requests, including any evidence or caselaw upon which he relies.
• By no later than February 19, 2010, the respondents shall serve and file any written submissions in reply.

5By Interim Decision, dated December 24, 2009, 2009 HRTO 2262, the hearing date was adjourned and rescheduled for May 13, 2010. The Interim Decision preserved the same schedule for submissions and reiterated that the matters to be dealt with at the hearing were the following:

The hearing scheduled for May 13, 2010, shall only address the preliminary issues raised by the respondents and shall not deal with the merits of the Applications...

6The applicant did not file any submissions by January 29, 2010. Instead, on that day his representative wrote to the Tribunal indicating that he would be seeking an extension of time and an order that the respondents first be required to file all relevant documents with the Tribunal.

7As indicated above, the responding parties had been provided with the opportunity to make a written reply to the applicant's submissions by a deadline of February 19, 2010. In the circumstances, Local 416 did not file any further submissions. The City did. Its motion materials suggested not only that the Application against it could be dismissed under section 45.1 of the Code on the basis that the substance of it had been appropriately dealt with in the grievance proceeding and/or for delay, but also that the applicant's failure to file any submissions in response to the requests for summary dismissal might be construed as abandonment of his applications.

8The City's motion materials were extensive and consisted of: detailed submissions; supporting documents; and copies of the case law on which the City intended to rely. These materials were served on the other parties and filed with the Tribunal on February 18, 2010. The applicant wrote to the Tribunal on February 23, 2010, acknowledging receipt of the City's "complete materials in reliance of [sic] their motion" and clarifying that the applicant had not abandoned his Application. The representative suggested that he would need 60 days to file his material in response.

9By letter dated March 18, 2010, the Tribunal's Registrar-Transition wrote to the parties as follows:

The Tribunal acknowledges the motion material filed by the City of Toronto on February 18, 2010. The preliminary hearing scheduled for May 13, 2010 will address the City's concerns. The Tribunal notes that the applicant has not complied with the deadline for filing a response to the City's request for dismissal and the consequence of such non-compliance will be dealt with by the Adjudicator on May 13, 2010.

No submissions were filed by the applicant prior to the hearing on May 13, 2010.

10Late in the afternoon of May 12, 2010, the applicant filed a Request for Order During Proceedings ("RFOP"). His request was for: an extension of time; particulars; production of documents; and "other", which was elaborated to be a

request for review of Tribunal order and directions relating to disclosure by moving parties to the hearing on Preliminary Issues as constituting a breach of natural justice and procedural fairness, and vary the orders to require the Respondents to disclose to [sic] case to be met, including evidence, on the issues to be raised at a Preliminary Hearing; and to set aside any order obtained by the Respondent on whether the Application is considered abandoned.

11At the outset of the hearing I addressed the matters raised in the applicant's RFOP.

12The issue of abandonment was dealt with quickly. I noted that the Tribunal had not dismissed the Application(s) as abandoned. On the contrary, the matter had remained on the hearing schedule. Furthermore, all parties had attended the hearing. The attendance of the applicant was inconsistent with any factual finding that he had abandoned his Applications. The City indicated that, in view of my comments, it would not make any submissions on the abandonment question.

13I verified with the City and with Local 416 that neither intended to call any viva voce evidence on the preliminary issues, and that both intended to rely only on documentary evidence already filed by them on or before February 18, 2010. It appeared to me from this assurance that there was no basis for the applicant's ROFP and that the preliminary issues to be addressed had been fully particularized and disclosed. I also indicated to the applicant that, despite his failure to comply with the Tribunal's earlier direction to have filed written submissions, I was prepared to entertain his oral submissions as to why the motions for dismissal should not succeed, subject to the caveat that the ambit of his submissions might be restricted if they relied on matters that might be new or surprising to the other parties in the absence of written notice.

14At this point, the applicant's representative suggested that he was taken by surprise, and that he had been misled by the Tribunal into thinking that the only issue that would be addressed on May 13, 2010 was the question of whether the Applications should be considered abandoned.

15There is, quite simply, nothing in the Tribunal's communications that could reasonably lead to that interpretation. The October 29, 2009 notice and the Interim Decision of December 24, 2009 clearly identified the scope of the issues to be addressed as including all those on which the request for summary dismissal were based. The City's motion materials simply added the question of abandonment to those issues. The Tribunal's letter dated March 18, 2010 warned the applicant that there could be consequences if he continued to fail to respond in writing to the City's motion materials. Furthermore, the contents of the applicant's own ROFP are not consistent with any understanding that "abandonment" would be the only issue addressed. In any event, if there was any sincere uncertainty as to the matters to be addressed, the applicant's representative could have and should have sought clarification.

16In the circumstances, I therefore indicated that I would hear oral submissions from the requesting parties. At that point, we would take the morning recess and return to hear the applicant's response and any reply submissions. We were in a position to start the morning recess at 11:00 a.m. The applicant's representative requested that we take lunch and return to hear his submissions in the afternoon. This request was opposed by the other parties, and I directed that we would reconvene at 11:45 a.m., at which point, the applicant's representative made his submissions, followed by brief reply from the responding parties.

17Counsel for the intervenor was in attendance at the hearing. His client's interests were not affected by the Request(s) and he took no position on them, nor did he seek to make any submissions.

The Factual Background to the Requests

18The applicant is an employee of the City. Local 416 is his bargaining agent. In 1999 the applicant suffered a workplace injury, as a consequence of which he could not continue to perform the duties of the position he held at the time of the injury, and was assigned to another equivalently paid position within the Local 416 bargaining unit. The new position was in the Customer Service Unit (the "CSU position") and the applicant continues to occupy it to this day.

19There is no allegation in the complaints underlying these Applications that the CSU position does not comply with the medical/ergonomic restrictions posed by the applicant's injury. There is no allegation that the CSU position is demeaning.

20The applicant would prefer to be employed in a different position, namely as a By-Law Enforcement Officer, which is a unionized position that falls within the bargaining unit represented by the intervenor, CUPE Local 79. Local 416's collective agreement with the City contains an accommodation protocol. It provides that positions for Local 416 members requiring accommodation are first sought within the Local 416 bargaining unit. If no position satisfying the employee's accommodation needs is found within the bargaining unit, then a position may be sought among the City's non-unionized staff, or, in the last resort, within the Local 79 bargaining unit.

21Local 416 filed two grievances on the applicant's behalf in April and June 2006 (SWM-06-86 and SWM-06-158) taking issue with the applicant's work assignment. Each of them made specific reference to the "no discrimination" clause of the collective agreement. One grievance employed the phrase "failed to accommodate" and referred specifically to the Code. It sought as redress that the applicant be "placed permanent into By/Law". The other grievance sought "full redress" in more generic terms and, in addition to referring to several articles in the collective agreement, characterized the City's contravention as "not treating the grievor the same as other injured employees". Both of these grievances were withdrawn by Local 416 in October 2007.

22Local 416 filed a third grievance (SWM-06-159) on behalf of the applicant on October 26, 2006. It referred again to the "no discrimination" clause of the collective agreement, and complained of an "unfair and unjust transfer". What gave rise to this grievance was the applicant's assignment to a different location in the City. His CSU position itself did not change. This third grievance was still pending at the point the applicant filed his complaints on March 13, 2008.

23The complaints underlying the two Applications are identical, but for the identification of the responding parties. Each alleges discrimination on the basis of "disability" in "employment". The first paragraph of each complaint reads:

1. The complainant was injured on the job in 1999, and since that time, he has sought to gain the opportunity to be trained as a by-law officer, this is the accommodation he has sought;

The complaints refer in several paragraphs to the applicant's understanding that his "union affiliation", by which he appears to mean the fact that his bargaining agent is Local 416, has been a hurdle to his attempts to be placed into, or promoted into, a position as a By-Law Officer, a position in which he asserts other injured workers in the employ of the City have been accommodated. The applicant has unsuccessfully applied for posted By-Law Officer positions. Throughout, the complaints focus on access to the By-Law Officer position as an accommodative measure. One of the remedies sought is that the applicant be provided a modified work program and training to enable him "to be placed" in a By-Law Officer position.

24On May 5, 2008, approximately six weeks after the complaints were filed, the third grievance was settled in writing. Minutes of Settlement were executed by the applicant and by representatives for each of the City and Local 416. The Minutes of Settlement contained certain pre-printed portions stipulating that they fully and finally resolved the grievance on a without prejudice basis and that it was withdrawn. They also contained the following provisions:

1. The parties and the Grievor agree the Grievor is being accommodated in the Customer Service Unit – his base location shall be 1050 Ellesmere Road.

2. The Employer agrees to credit the Grievor's lieu bank with 10 X 8 hours for a total of 80 hours, such lieu time to be taken by Dec. 31, 2008.

Analysis

25Section 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.

26It is now a matter of established Tribunal case law that: (1) the grievance arbitration process is "another proceeding" for the purposes of section 45.1; and (2) the term "appropriately dealt with" encompasses any disposition of the merits of the Application that occurs in another proceeding and can include settlement by the applicant. See Dunn v. Sault Ste. Marie (City), 2008 HRTO 149 and Rodgers v. Hydro One Networks, 2009 HRTO 1871.

27If the substance of these Applications is the same as the substance of the grievances filed on the applicant's behalf, then they have been appropriately dealt with in another proceeding. I find that the substance of the grievances and these Applications is the same.

28On a plain reading of these applications, the issue raised is whether, despite the fact that they contain no assertion that the applicant's medical or ergonomic restrictions or any other factors made the CSU position less than appropriate, the applicant should be accommodated in a position other than the CSU position.

29All three grievances filed on behalf of the applicant alleged contraventions of the "no discrimination" clause of the collective agreement and all arose in one way or another as a result of the applicant's unhappiness with the CSU position.

30The Minutes of Settlement, which post-date the applications, contain an explicit acknowledgment and agreement that the applicant is "being accommodated" in the CSU position, a position he has occupied since sustaining his workplace injury in 1999. The term "accommodated" has legal significance, a significance that was known to the parties as revealed by the language used in the grievances and the parties' written communication respecting them. In this context, "accommodated" must be construed as intending to resolve (as at least at the time of the Minutes' execution) the legal question of the City's obligation to look for a different placement for the applicant. The substance of the question of "accommodation" has therefore been squarely addressed by the signatories to the Minutes of Settlement. I therefore reject the submission of the applicant's representative that the only legal effect of the Minutes of Settlement was to settle the question of "where the applicant would be working".

31It is not at all clear what section of the Code the applications allege that Local 416 infringed. The applicant's legal representative explained that the crux of the complaint against Local 416 was that "the City discriminated and the union did not take sufficient steps to redress the wrong". I am not sure that such an allegation makes out a prima facie case that Local 416 or its officers breached the Code, but that issue need not be decided. If the complaint is that Local 416 did not take the necessary steps to ensure that the City accommodated the applicant's disability, then his written acknowledgment that he "is being accommodated in" the CSU position he has held since the date of his injury is sufficient to resolve the matter.

32The applicant's representative made some submissions to the effect that the complaints and the Applications are not really about "accommodation" in terms of the question of an appropriate job placement for the applicant. Instead, he suggested that the complaints were really about discrimination on the basis of disability because the applicant was not provided with the same training opportunities as other injured workers had been.

33I note that the only part of the complaints that reference "training" is the remedial request, so that it is arguable that, in making these submissions, the applicant's representative is inappropriately seeking to expand the grounds of the complaints. Furthermore, the Applications do not identify the other injured workers he alleged received the training opportunities, nor do they provide any particulars about their individual circumstances. There is therefore an issue as to whether these allegations have been properly particularized. Even construing the Applications as being about the denial of access to training opportunities and treating them as sufficiently particularized, the applicant's case with respect to overcoming the respondents' preliminary motions is not advanced.

34The assertion that other injured workers received the opportunities (either placement or training) that the applicant would have liked suggests that the reason he did not receive those same opportunities was unrelated to the fact that he was also injured, and was based on some other factor. Indeed, the applicant asserts repeatedly that the reason he did not receive access to training or direct placement into the By-Law Officer position was because he was in the Local 416 bargaining unit and not the Local 79 bargaining unit. The identity of one's bargaining agent is not a prohibited ground of discrimination under the Code.

35In short, if the complaints and the Applications are about accommodating the applicant's disability by placing him in a suitable position satisfying his medical restrictions (which they clearly are), their substance has been explicitly dealt with and resolved in the grievance procedure. If the complaints are not about accommodation in that sense, then they are not about anything that could constitute discrimination on the basis of a ground prohibited by the Code.

36For all of the above reasons, the Applications are dismissed.