Barker v. Service Employees International Union, 2010 HRTO 1921

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Megan Barker Applicant

-and-

Service Employees International Union, Local 1 Ontario Respondent

INTERIM DECISION

Adjudicator: Faisal Bhabha Date: September 22, 2010 Citation: 2010 HRTO 1921 Indexed as: Barker v. Service Employees International Union

AppearanceS BY

Megan Barker, Applicant ) Charlene Nero, Representative Service Employees International Union, Local 1 Ontario, Respondent ) Gail Misra, Counsel

INTRODUCTION

1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on January 28, 2009, alleging discrimination in employment on the basis of disability. The respondent, the applicant’s former employer, denies the allegations and seeks early dismissal of the Application under section 45.1 of the Code.

2In an Interim Decision, 2009 HRTO 1253, I ordered that an oral hearing be convened to hear submissions on the following issues:

a. Should the Tribunal dismiss the Application, in whole or in part, pursuant to section 45.1, because the substance of the Application has been appropriately dealt with by the grievance arbitration process?

b. Is the applicant otherwise precluded from re-litigating some or all of the issues and facts that have been decided by the grievance arbitrator?

3A hearing by way of teleconference was held on June 21, 2010. The applicant did not attend. An individual identifying herself as Charlene Nero, former colleague and friend of the applicant, attended and sought to make submissions on the applicant’s behalf. Although Ms. Nero is not on record as the applicant’s representative, the respondent did not object to her making submissions in respect of the preliminary issues on the applicant’s behalf, and I allowed her to do so.

FACTUAL BACKGROUND

4The Tribunal has not yet heard any oral evidence. The following is based on the materials filed and on the submissions of the parties.

5The applicant worked as a receptionist for the respondent, a trade union, from December 5, 2005 until she was terminated on February 4, 2008. The applicant was represented by a union, the United Steelworkers (the “union”), and her employment was governed by the terms of a collective agreement.

6In 2007, the applicant missed a number of days of work. The respondent investigated the matter and learned that the applicant’s absences were for medical reasons. In late August 2007, she produced a medical note from her family physician advising the respondent that the applicant was receiving care for Crohn’s disease and that she would be undergoing surgery to treat her condition. She went off work on sick leave on September 5, 2007.

7Initially, the applicant expected to return to work after six weeks. However, her absence kept being extended by three or four weeks at a time by way of follow-up notes from her physician, which provided some details about the need for follow-up care or for bed rest.

8In a letter to the applicant dated December 18, 2007, the respondent noted what it identified as “inconsistencies” in the medical documentation, and requested that the applicant submit to an independent medical evaluation (“IME”) in order to facilitate her return to work. Enclosed with the correspondence was a consent form, which the respondent asked the applicant to complete and return by December 28, 2007.

9On January 4, 2008, the applicant sent the respondent an email indicating that she had just received the respondent’s correspondence, and asking for time to consult with her physician. In correspondence dated January 16, 2008, the respondent again requested the applicant to consent to the IME by February 1, 2008, suggesting to her that she need not consult with her physician about whether to submit to an IME.

10The applicant responded on January 20, 2008 with her “latest doctor’s note”—this time not from her family physician but from a psychiatrist who the applicant described as “one of my specialists at the hospital”. The psychiatrist stated that the applicant was not fit to return to work “at least for 6-8 weeks until her reassessment”. The applicant indicated that if the respondent was still not satisfied with the documentation, she would sign the IME consent form.

11On January 21, 2008, the respondent replied with a further request for the applicant to consent to an IME. In an email dated January 30, 2008, the applicant stated that she would consent to the IME, but that on the advice of her union, she would not sign or agree to a release of medical information to her employer. She further stated that her physicians had not yet settled on a diagnosis for her symptoms.

12In a letter dated February 4, 2008, the respondent terminated the applicant’s employment, stating:

You have indicated that you refuse to sign the Independent Medical Evaluation Form, as proposed. We have requested cooperation and our motivation is to facilitate a return to work plan that utilizes those medical services. Since you have chosen not to sign the authorization, it makes it impossible for the parties to determine prognosis and consequently prohibits a return to work plan. As a result, we have no other alternative but to terminate the employment relationship.

13The applicant’s union filed a grievance on February 7, 2008 alleging that the termination of employment was without just cause. The union argued that the employer had sufficient medical documentation to support the applicant’s continued absence from work and further that the employer had obstructed the applicant’s application for long-term disability (“LTD”) benefits. The union also argued that the termination amounted to a breach of the Code.

14On June 4, 2008, the matter proceeded to mediation-arbitration before George Surdykowski, appointed pursuant to section 50 of the Ontario Labour Relations Act, 1995., S.O. 1995, c. 1. In a Preliminary Award dated June 9, 2008 (the “Preliminary Award”), the arbitrator wrote at para. 20: “The Union alleges that the Employer actions, including its decision to discharge the grievor violate the provisions of the Ontario Human Rights Code. That Code complaint is properly made, and having been made in this forum cannot be made elsewhere” [emphasis in original].

15The Preliminary Award found at para. 23 that the applicant’s medical documentation was “totally inadequate” and failed to “provide a sufficient reason or explanation for the grievor’s inability to return to work or for the continuously extended return to work dates.” He further found that it was wrong for the applicant to refuse to agree to the release of medical information obtained through an IME: “Agreeing to an examination without a release of information defeats the purpose of an IME and is no agreement at all.”

16After a lengthy consideration of the respective rights and interests of employers and employees dealing with accommodating disability-related absences under a collective agreement, the arbitrator decided to give the applicant one more opportunity to submit to an IME. He warned that the grievance would be dismissed if the applicant refused to undergo the IME. The arbitrator ordered that he would “consider the matter, and determine how to proceed” after reviewing the medical report.

17The applicant submitted to an IME with a psychiatrist of the respondent’s choosing, Dr. Michael Rosenbluth, who produced a report dated July 24, 2008 (the “Report”). In correspondence dated August 27, 2008, the respondent forwarded a copy of the Report to the arbitrator, and requested that the grievance be dismissed. The arbitrator wrote to the union on September 3, 2008 seeking submissions on the respondent’s request for dismissal. In correspondence dated September 8, 2008, the union confirmed it had received a copy of the Report and asked that the applicant be reinstated to her job.

18The arbitrator issued his Final Award on November 15, 2008 (the “Final Award”). As a preliminary matter, he raised on his own accord a jurisdictional issue regarding the admissibility of post-discharge evidence, i.e. the Report. Notwithstanding that there was no objection from either of the parties, the arbitrator found that he had no jurisdiction to consider Dr. Rosenbluth’s IME Report.

19The arbitrator went on to review the evidence already before him, the history of the applicant’s absences and communications between her and the respondent. The arbitrator summarized his findings with respect to these conclusions, stating that the medical notes “do not provide sufficient information in the circumstances… there is nothing in any of the medical notes provided by the grievor that suggested that she would be able to return to either regular or modified duties in the foreseeable future”. Furthermore, he drew a negative inference from the fact that the union had failed to adduce any additional evidence to support the applicant’s claims (questions of admissibility aside), despite the fact that he had expressed concern about the existing evidence at the June 4, 2008 hearing.

20Based on his review of the matter, the arbitrator concluded that it appeared unlikely the applicant would have been “able to return to work with or without accommodation in the foreseeable future.” Citing the Supreme Court of Canada’s then-recent unanimous decision in Hydro-Québec v. Syndicat des employées de technique professionelles et de bureau d’Hydro-Québec, section locale 2000, 2008 SCC 43, [2008] 2 S.C.R. 561, confirming that an employer is not required to hold a disabled employee’s job where the employee will not be fit for work in the foreseeable future, with or without accommodation.

21Despite concluding that he had no jurisdiction to consider Dr. Rosenbluth’s Report, the arbitrator included alternative reasons in the event the Report was properly before him. He concluded that “even if Dr. Rosenbluth’s IME Report was properly before me, it would not be sufficient to persuade me to allow the grievance and return the grievor to the workplace.”

22Significant portions of the Report were reproduced in the Award. In response to question 4 about whether the applicant was ready to resume full-time work, Dr. Rosenbluth responded that

it is not likely she could resume full-time work [at this time] because of her psychiatric symptoms… it would be reasonable to anticipate she could return to work within an eight to ten week time frame. She needs to know if she has a job to go back to and then she needs help in preparing herself for her return to work.

23In responses to later questions about workplace modifications and full recovery prognosis, he referred back to this time frame. In responding to a question about the applicant’s medical progress, he opined that her progress has been “very positive” given the nature of her symptoms, but he also warned that

her progress has been slowed down significantly by her termination and has been slowed down, I believe, by her longstanding personality vulnerabilities combined with her substantial occupational problems including being, as she feels, unfairly terminated.

24Finally, Dr. Rosenbluth suggested that while the applicant was progressing under the care of a specialist, he was recommending more intensive psychiatric treatments, which the applicant supported, though she was apparently not willing to pursue a day treatment program as per the recommendation of her psychiatrist. Dr. Rosenbluth urged her to follow that recommendation.

25In explaining why he was not swayed in his conclusions by Dr. Rosenbluth’s opinion, the arbitrator stated at para. 46 that the applicant’s “subjective sense that the Employer has treated her unfairly is irrelevant. Most grievors feel that way and the test is an objective one.”

26In addressing Dr. Rosenbluth’s concern that the termination of employment had slowed the applicant’s progress, the arbitrator stated,

although I appreciate that the longer the grievor is off work, the more difficult it will be for her to return to any employment, this Employer is not a social agency and its workplace is not a medical rehabilitation facility. The employer is not obliged to continue or return a person to employment merely because it may facilitate her recovery.

27The arbitrator further based his decision on his finding that the applicant was not following the course of treatment recommended by her psychiatrist, that Dr. Rosenbluth’s recommendation of an eight to ten week timeframe for returning to work was “significantly qualified”, and that there was no evidence that accommodation would assist the applicant’s return to the workplace.

28The union was free to seek judicial review of the arbitration award, which it did not do. The applicant relies on a claim that she had no independent legal right to take any action in respect of the grievance decision. She had recourse to file a Duty of Fair Representation application against the union at the Labour Relations Board, which she did not do. On January 28, 2009, she filed this Application.

POSITION OF THE PARTIES

29The respondent requests dismissal pursuant to section 45.1 of the Code on the basis that the Application is “frivolous and vexations” and that the respondent should not be required to re-litigate issues that have already been decided by an arbitrator simply because the applicant does not accept the result of the first proceeding. The respondent argues that not only has the substance of the Application been appropriately dealt with in another forum, but that it would amount to an abuse of process to allow the matter to proceed to a hearing when the evidence has already been heard and considered by an impartial adjudicator in another forum.

30The applicant argues that the Award fails completely to address the question whether the respondent violated the Code, and contains minimal reference to the human rights element of the grievance. Not only is the Award silent on the question of the Code, but the applicant argues that there is no indication the arbitrator even considered all the discrimination claims encompassed in this Application. For instance, she submits, the arbitrator did not consider the question of whether there was deliberate, direct discrimination. In the Application, she alleges that the respondent preyed on her disability, intentionally harmed her and failed to process her LTD application to deliberately prevent her from accessing disability support prior to terminating her employment. She argues that these claims were not addressed by the arbitrator, directly or indirectly.

31Furthermore, the applicant argues that she had no independent right of appeal or standing to seek judicial review of the Award. The only option she had was to complain against her union under the LRA, which she argues is a statutory regime designed to protect bargaining agent interests, not individual rights. She makes the argument that the Code is the “last stop” to ensure that human rights issues are fully and properly addressed.

ANALYSIS AND DECISION

32Section 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.

33The threshold question is: was the other decision-making process a “proceeding” within the meaning of section 45.1. I have no difficulty finding that an Award of an arbitrator duly appointed pursuant to the LRA is a “proceeding” for the reasons articulated in Virgin v. Dollar, 2009 HRTO 899, Van Barneveld v. I.O.O.F. Seniors Homes, 2009 HRTO 448; Rodrigues v. Toronto Community Housing, 2010 HRTO 258.

34The main question at this stage is whether that other proceeding “appropriately dealt with the substance of the application”. This question also has two parts. First, I must identify the substance of the Application and then, determine whether the arbitrator in the other proceeding appropriately dealt with it.

35The substance of the Application is whether the applicant had a disability, whether she experienced adverse treatment directly or indirectly related to her disability, and, if so, whether there is a statutory defence to justify the respondent’s conduct.

36In examining whether the arbitrator “appropriately dealt with” these issues, I must contend with a paucity of jurisprudence elucidating what “appropriately dealt with” means.

37In British Columbia, where human rights legislation contains a provision similar to section 45.1, the B.C. Human Rights Tribunal has stated that “the question of whether a matter has been appropriately dealt with in another proceeding does not include an assessment of whether the Tribunal would have conducted the assessment in an identical manner or whether it considers the decision correct.” See Villella v. City of Vancouver (No. 3), 2005 BCHRT 405 at para. 22. I accept this as a sound approach and one which is consistent with decisions of this Tribunal that have held it is not designated to hear appeals from the rulings of other decision-makers.

38In Boncori v. TRW Canada Limited, 2010 HRTO 1620 at para. 10, the Tribunal, citing the B.C. Human Rights Tribunal, framed the task under s. 45.1 as follows:

In determining whether the matter was “appropriately dealt with” in the other proceeding, the appropriate role for the Tribunal is to determine whether the arbitrator proceeded fairly and upon the proper principles, with due consideration of the facts and human rights law relevant to the discrimination issue before him: Rush v. City of Richmond, supra at para. 76.

39Thus it is clear that while the Tribunal does not exercise review power over the decisions of others, from a practical standpoint, it is necessary at times to scrutinize the human rights analysis of other decision makers. The purpose is to determine whether the kind of analysis contemplated by the Code, and central to the Tribunal’s expertise, has been undertaken where a Code issue has been raised.

40Such an approach is consistent with elementary principles of statutory interpretation. In the language of section 45.1, “appropriately” qualifies “having dealt with”. Thus, it is not sufficient that the human rights claims have been addressed or considered by a decision maker with the requisite authority. The inclusion of “appropriately” in the statutory language signals a mandate to probe the relevant aspects of the other proceeding. In my opinion, this amounts to more than a guarantee of basic procedural fairness. As both the B.C. Tribunal and this Tribunal have stated in the passage cited above, in addition to fairness, “appropriately” also implies that the other proceeding applied “proper principles” and gave “due consideration” to the facts and relevant law. These functions necessitate, at times, a deeper enquiry into the reasons of the other decision maker.

41It is now settled law that anti-discrimination legislation is subject to the concurrent and overlapping jurisdiction of an array of administrative decision-makers: Tranchemontagne v. Ontario (Director, Disability Support Program), 2006 SCC 14, [2006] 1 S.C.R. 513. What this means, practically speaking, is that the legislature contemplated the possibility that human rights claims might arise in multiple settings. Duplication in litigation can result in the inefficient use of scarce judicial and quasi-judicial resources. Section 45.1 gives the Tribunal the extraordinary power to dismiss a case on a preliminary basis.

42While other decision-makers have the jurisdiction to apply the Code, the only way of ascertaining after the fact whether the decision-maker gave “due consideration” to all the facts and law, and applied the “proper principles” to the issues at stake, is to read the language of the decision itself. This can present challenges, given that not all decisions include written reasons, and not all reasons are necessarily comprehensive. In a regime in which a variety of agencies exercise concurrent jurisdiction over human rights issues, it is helpful for administrative decision-makers to be clear and fulsome in their reasons to assist others to know what has and has not been considered, from a judicial economy standpoint. In the light of the fact that quasi-constitutional rights are at stake, in my opinion the Tribunal should be reluctant to dismiss an application where it is not manifestly clear that the human rights issues have been fully and properly addressed.

43Even where the reasons are full and clear, in some cases, the Tribunal may find that the analysis undertaken by the other decision-maker was ill-fitted to determining rights and obligations under the Code. In Boyce v. Toronto Community Housing Corporation, 2010 HRTO 520, for example, the Tribunal found that a decision of the Workplace Safety and Insurance Board (“WSIB”), concerning the availability of “suitable work” for an injured worker did not appropriately deal with the question of disability accommodation.

44On review of the Preliminary and Final Awards, I find that the arbitrator did not appropriately deal with the human rights component of this case. The Awards focused on the applicant’s failings, specifically with respect to furnishing sufficient medical documentation, being responsive to the respondent’s requests for information and ultimately in being capable of establishing a clear return-to-work timeframe. These issues may have been relevant to the arbitrator’s determination of what constitutes “just cause” under the collective agreement. However, the Awards do not address whether the respondent was capable of accommodating the applicant’s absence up to the point of undue hardship.

45While the arbitrator cited the Supreme Court in Hydro-Quebec, supra, that case concerned the undue hardship test and at what point an employer is relieved of its obligation to flex a workplace requirement in favour of a disabled worker. On the face of the written reasons contained in the Awards, there is no indication that the arbitrator heard any evidence about the employer’s ability to accommodate the applicant’s continued absence. Absent express language, I cannot infer that the arbitrator decided that continuing the applicant’s employment could not be done without imposing undue hardship on the respondent. While a failure to meet a job requirement may constitute a breach of a collective agreement and constitute just cause for termination, it is not implied in that analysis that the requirement itself is determined to be non-discriminatory.

46Pursuant to section 17 of the Code, an employer need not employ someone who is incapable of performing or fulfilling the essential duties or requirements of the job due to a disability, as long as the employer can show that the needs of the person cannot be accommodated without undue hardship. Similarly, section 11 provides that an employer can enforce a neutral rule or requirement, as long as the needs of a member of a protected group cannot be accommodated without undue hardship. The arbitrator did not answer the questions raised by these sections.

47Similarly, the arbitrator did not directly answer the question whether the applicant’s termination of employment was discriminatory. Although in the Preliminary Award the arbitrator stated that the human rights issues were properly before him, his final decision did not speak directly to the issue of discrimination and accommodation. He concluded as follows: “I am satisfied that the Employer had just cause to terminate the grievor’s employment because she was unable to fulfill the basic obligation to attend work and there was no indication that she would be able to do so in the foreseeable future.” Left unanswered is the question to what extent the respondent could accommodate the applicant’s absence from work.

48I am unable to infer from the arbitrator’s conclusion that the termination was “just” that he also concluded that requiring the applicant to return to work or furnish additional medical documentation was non-discriminatory. In order to make such an inference, I must be satisfied that the arbitrator heard evidence and considered the necessary elements to reach this conclusion, which I am not. If he did, it is not clear in the wording of the Awards.

49The arbitrator also apparently did not consider the issue of whether the respondent discriminatorily obstructed the applicant’s application for LTD benefits. This was an additional allegation contained in the grievance which is also encompassed in the Application. There is no indication that the arbitration hearing included any consideration of evidence on this issue. I therefore find that this aspect of the applicant’s case has not been appropriately dealt with within the meaning of section 45.1.

50I should be clear that I am not deciding the question of the respondent’s Code liability. I have not heard any evidence or given any consideration to the merits of the applicant’s case. The sole issue before me at this point is whether the questions she raises have already been answered in the arbitral proceeding.

51I should also be clear that a decision not to exercise the extraordinary power of preliminary dismissal does not amount to a decision to “re-litigate” the entire case. The adjudicator assigned to hear the case retains the usual authority to determine the scope and content of the hearing, including what evidence to hear.

Duty of Fair Representation

52The respondent relied on the availability of redress under the LRA to support its argument that the applicant’s failure to file a Duty of Fair Representation (“DFR”) application against her union, and instead to commence this proceeding, amounted to an abuse of process.

53Usually, where a unionized employee has been dismissed from employment and is dissatisfied with the outcome of a grievance arbitration, the avenue of redress is judicial review. When, as in this case, the union fails to pursue judicial review, the individual’s recourse is to file a DFR application against the union with the Labour Relations Board. This Tribunal has determined that a DFR application is a “proceeding” within the meaning of section 45.1, and that a settlement or decision in a DFR case “appropriately dealt with” the substance of the human rights application to the extent that the union is named as a party in the Application. See Dunn v. Sault Ste. Marie (City), 2008 HRTO 149.

54The Supreme Court of Canada set out the principles governing the union’s duty of fair representation in Canadian Merchant Services Guild v. Gendron, 1984 CanLII 18 (SCC), [1984] 1 S.C.R. 509 at p. 527. Those principles are described as follows:

1. The exclusive power conferred on a union to act as spokesman for the employees in a bargaining unit entails a corresponding obligation on the union to fairly represent all employees comprised in the unit.

2. When, as is true here and is generally the case, the right to take a grievance to arbitration is reserved to the union, the employee does not have an absolute right to arbitration and the union enjoys considerable discretion.

3. This discretion must be exercised in good faith, objectively and honestly, after a thorough study of the grievance and the case, taking into account the significance of the grievance and of its consequences for the employee on the one hand and the legitimate interests of the union on the other.

4. The union's decision must not be arbitrary, capricious, discriminatory or wrongful.

5. The representation by the union must be fair, genuine and not merely apparent, undertaken with integrity and competence, without serious or major negligence, and without hostility towards the employee.

55The scope of the duty of fair representation is “limited” in respect of the individual interests of bargaining unit members. As the OLRB stated in McKesson Canada, [2005] O.L.R.D. No. 966 at para. 33, cited affirmatively in Dunn, supra at para. 28:

(…) as representative of all employees, a union is not, and cannot be, the agent of any particular employee, in the sense of being obliged to do what that employee asks to be done. Rather the obligation of a union is to attempt to be a good representative with respect to the bargaining unit: to consider requests in relation to its representation of that bargaining unit in a manner that is not arbitrary, discriminatory or in bad faith.

56It is important to emphasize that the DFR application is a legal process available to determine union liability in its dealings with its member. The DFR does not address the merits of the underlying grievance against the employer. The remedy in a DFR proceeding is usually an order that the union continue to litigate the grievor’s matter: Dunn, supra at para. 31.

57I am therefore unable to accept the respondent’s argument that the applicant’s failure to file a DFR and instead to bring this Application amounts to an abuse of process. In Perricone v. Fabco Plastics Wholesale, 2010 HRTO 1655 at para. 77, the Tribunal stated that the

right to file an Application under the Code is not removed by the mere existence of other legal avenues which she might have pursued. There are provisions in the Code which bar an Application where the applicant has commenced a civil proceeding seeking a remedy in respect of the alleged Code infringement (s. 34(11)) and which give the Tribunal jurisdiction to dismiss all or part of an Application where the substance of the Application has been appropriately dealt with in another proceeding (s. 45.1). However, nothing in the Code gives the Tribunal jurisdiction to refuse to hear an Application on the basis that it could have been or could yet be pursued in a different legal forum. [emphasis added]

58Whether the applicant complained against her union is unrelated to the question before me; that is, whether the arbitration hearing into the employer’s potential liability appropriately dealt with the substance of this Application. As the Tribunal stated in Maurer v. Metroland Media Group, 2009 HRTO 200 at paragraph 12, referring to the availability of a DFR proceeding: “Section 45.1 addresses situations in which another proceeding has dealt with the substance of the Application, not in which another proceeding could deal with it. The existence of other avenues is not by itself a basis for the application of section 45.1.”

59I am also sympathetic to the applicant’s access-to-justice argument. In the labour relations setting, a worker’s individual rights are balanced against other individual and collective interests. The ability to enforce human rights and to seek remedies under the Code should not be extinguished with ease.

ORDER

60The Tribunal orders as follows:

I The respondent’s request for dismissal of the Application pursuant to section 45.1 is refused.

II The Application may proceed to a hearing to determine the following issues:

(i) Did the respondent have a duty to accommodate the applicant’s disability-related needs?

(ii) Did the respondent accommodate the applicant’s disability-related needs up to the point of undue hardship?

(iii) Did the respondent discriminatorily terminate the applicant’s employment?

(iv) Did the respondent discriminatorily obstruct the applicant’s application for long-term disability benefits?

(v) If the answer to questions ii), iii) or iv) is “yes”, what is the appropriate remedy?

III The adjudicator assigned to hear the case will determine the scope of the evidence necessary to be heard to determine these issues, and may seek submissions from the parties on which facts, if any, to adopt from the arbitral Awards.