Human Rights Tribunal of Ontario
B E T W E E N:
Edmund Niescior
Applicant
-and-
Corporation of the County of Essex (Essex-Windsor Emergency Medical Services) and Sun Parlour Emergency Services Incorporated
Respondents
-and-
Canadian Union of Public Employees and its Local 2974.1
Intervenor
DECISION
Adjudicator: Naomi Overend
Indexed as: Niescior v. Essex County
APPEARANCES
Edmund Niescor, Applicant ) John McLuckie, Counsel
Corporation of the County of Essex, ) David Defrancesco, Counsel Respondent )
Sun Parlour Emergency Services ) David Defrancesco, Counsel Incorporated, Respondent )
CUPE, Intervenor ) Paul O’Ryan, Counsel
1The applicant filed his Application on February 19, 2009 under s. 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the "Code"), alleging discrimination in employment on the basis of disability. Previously, he had filed two grievances concerning the termination of his employment with the two respondents, one of which went to arbitration.
2The respondents brought a Request for early dismissal of this Application under s. 45.1 based on the arbitral decision, which the respondents state has appropriately dealt with the substance of the Application. The respondents also argue, in the alternative, that to proceed with this Application would be an abuse of process. A teleconference was convened, which allowed the parties to make oral submissions concerning this issue. This Decision deals with that issue.
FACTS
The Deactivation of the Applicant’s Certification and Termination from the Respondents
3The applicant was separately employed by the two respondents as a paramedic. Sun Parlour Emergency Services Incorporated ("Sun Parlour") operated in the Chatham-Kent area, while the Essex-Windsor EMS ("Essex-Windsor") operated in the Windsor and surrounding area. During a shift for Sun Parlour in April 2008, the applicant and his partner were involved in an incident which resulted in his certification in "symptom relief" and "defib" being deactivated by the Base Hospital Director (the "Director").
4A paramedic who has had their certification deactivated is not entitled to carry out the duties of a paramedic in Ontario until they successfully pass a re-qualifying exam set by the Director. Thus, even though the incident happened while employed by Sun Parlour, the deactivation meant that the applicant was not entitled to work as a paramedic for Essex-Windsor as well. Both respondents put the applicant on a leave of absence without pay once they learned of the deactivation of his certification.
5The applicant was a member of two separate bargaining units: The Canadian Union of Public Employees, Local 2974.1 ("CUPE") represented the paramedics at Essex-Windsor and the Service Employees International Union, Local 1 ("SEIU") represented the paramedics at Sun Parlour.
6The Collective Agreement between Sun Parlour and the SEIU specified that a paramedic who fails to be reactivated by the Director within 90 days will be terminated. The applicant’s employment with Sun Parlour was terminated under this provision on July 7, 2008. The Collective Agreement between Essex-Windsor and CUPE did not contain an automatic termination provision, but his employment with Essex-Windsor was terminated for "just cause" on July 4, 2008. In his letter of termination, the representative from Essex-Windsor notes that the applicant had made several unsuccessful attempts to achieve "recertification status" in the period following the deactivation of his certification.
The Grievances
7The applicant grieved both dismissals. On January 15, 2009, the SEIU grievance contesting his dismissal from Sun Parlour went to arbitration. Although his initial grievance did not allude to the human rights issue, on January 6, 2009, the SEIU provided Sun Parlour with a letter from the applicant’s doctor stating that the grievor (referred to in this Decision as the applicant) suffered from situational depression and anxiety from July 2007 through the relevant period in 2008. As of the date the letter was written (December 28, 2008), the doctor states that the applicant was "stable on medication."
8The SEIU argued before the arbitrator, Laura Trachuk, that the letter raised a prima facie case of discrimination on the basis of disability. Arbitrator Trachuk noted in her decision that, in the absence of a case of discrimination, the provision of the Collective Agreement terminating the applicant’s employment would prevail as there was no other basis on which the SEIU challenged the termination.
9On the first day of the arbitration, Sun Parlour brought a motion to have the grievance dismissed on the basis that the SEIU had failed to make out a prima facie case. For the purpose of the motion, it did not dispute the contents of the doctor’s December 28, 2008 letter, but argued that the letter did not allege that the applicant had a disability, or that the disability led to his decertification, or that it prevented him from becoming reactivated.
10The arbitration was reconvened by conference call on April 27, 2009. At the time, the SEIU noted that the applicant was recovered from his depression, but had not managed to pass the written portion of the test and so was still not reactivated. At that point, the SEIU asked that the applicant be reinstated and placed on an indefinite leave until he became reactivated.
11Arbitrator Trachuk dismissed the applicant’s grievance in an award dated May 19, 2009, finding that the applicant had failed to make out a prima facie case. She noted that she had the authority under the Labour Relations Act, 1995, to interpret and apply human rights statutes. She also noted that the Collective Agreement had a no discrimination clause. However, upon review of the letter from the doctor, she made the following findings:
The medical documentation provided by the union does suggest that Mr. Niescior was suffering from depression in 2008. However, it does not say that depression caused him to be deactivated or prevented him from being reactivated. There is nothing in the letter which says that Mr. Niescior was impaired to the extent that he could not meet the professional standards required of a paramedic. … Mr. Niescior asserted that he was recovered sufficiently from his depression to become reactivated in January 2009. It was confirmed on April 27, 2009 that he is no longer suffering from depression. Nevertheless, Mr. Niescior has not succeeded in becoming reactivated.
12CUPE, which had been awaiting the outcome of the above arbitration, did not refer the applicant’s grievance to arbitration following the release of Arbitrator Trachuk’s decision.
The Application
13In the meantime, on February 19, 2009, the applicant filed this Application, alleging discrimination in employment on the basis of disability. The applicant alleges that as a result of a pre-existing disability, which was made worse by the requirement to recertify, he was unable to pass the test within the requisite time period and, accordingly, his dismissal for failing to reactivate his certification in a timely manner was discriminatory.
Request to Amend the Application
14At the time he filed his Application, the applicant asserted that it was the depression and stress for which he was being treated that led to his failure to pass the recertification test. In the applicant’s Reply, however, counsel for the applicant alleges that the applicant also had a learning disability which, in combination with his depression, impacted his ability to successfully complete the formalized testing component of the recertification.
15On behalf of the applicant, counsel made a request to amend the Application to allege that the two respondents had "failed to accommodate his learning disability as it related to formalized testing." This request to amend was addressed in the oral submissions to the Tribunal. At this stage, it is not clear what this alleged learning disability is, or how it impacted his ability to undergo written testing.
16During the period when he was on the leave of absence from Sun Parlour and Essex-Windsor, the applicant retained counsel (his current lawyer, John McLuckie) to address the difficulty he was having passing the written portion of the test. Arbitrator Trachuck’s decision refers to the fact that counsel wrote to Sun Parlour in June 2008 asking them to extend the period of time during which the applicant could remain on a leave of absence. The purpose of this extension was to deal with the difficulties the applicant was having passing the recertification testing.
17As Arbitrator Trachuk notes, the June 2008 letter (which was also supplied to the Tribunal with the Reply) makes reference to the applicant’s difficulties with formalized testing, but does not refer to his client’s alleged depression or anxiety. The letter references another letter to the Director demanding changes to the manner in which the applicant was being tested. In her decision, Arbitrator Trachuk notes that in response to the demand, changes were made pursuant to a "Learning Contract Agreement" in order to facilitate the testing and reduce the stress of it on the applicant as much as possible. Despite the changes to the testing, the applicant continued to be unable to pass the written component.
18It would appear that counsel was only retained in 2008 for the short-term purpose of negotiating changes to the testing, and requesting (albeit unsuccessfully) the extension from Sun Parlour. When the applicant filed his Application on February 19, 2009, he indicated that he was not represented.
19By early 2009, it would appear that the allegations with respect to a learning disability had been discontinued. The applicant’s doctor makes no reference to a learning disability in his December 28, 2008 letter, the SEIU did not make arguments about any learning disabilities in its submissions to the Arbitrator, and the applicant makes no allegations with respect to any learning disability in his February 2009 Application.
DECISION AND ANALYSIS
20Section 45.1 of the Code provides:
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.
21Both respondents, who are represented by the same counsel, ask that the Application against them be dismissed under this section. Counsel argues that the substance of the Application is whether the applicant was discriminated against on the basis of disability when his employment was terminated by each of the respondents for failure to recertify within a set period of time.
22It is apparent on the face of the arbitration decision that Arbitrator Trachuk specifically accepted, for the purpose of deciding Sun Parlour’s motion, that the applicant had a disability, but found that the evidence did not make the necessary link between this alleged disability and the applicant’s repeated failure to pass the test that would allow him to reactivate his certification. That is, the applicant failed to prove a nexus between the termination of his employment with Sun Parlour and any alleged disability.
23This reasoning applies equally to the decision by Essex-Windsor to terminate the applicant’s employment. It is not dependent on the unique wording of the collective agreement, or conditions of work. Both employers required the applicant to have the necessary certifications in order to work as a paramedic; both employers terminated his employment with them because he was not able to reactivate his certification within a specified period. The reactivation process was conducted by a third party, and was not in any way tailored to the unique needs of either employer. If the applicant had passed the written portion of the test, his leave of absence with both employers would have been lifted.
24Counsel for the applicant argues that Essex-Windsor was a larger employer, with a greater ability to accommodate the applicant’s absence or even to temporarily place him in another job during the period he was awaiting recertification. However, there is no request for this latter form of accommodation in either the applicant’s grievance with CUPE or his Application to this Tribunal.
25More to the point, the question of accommodation only arises when the applicant is able to demonstrate that he was subject to prima facie discrimination. As noted above, the arbitrator did not make a finding of discrimination and, accordingly, the question of accommodation simply did not arise. Put another way, in the absence of discrimination, there is no freestanding right to "accommodation" under the Code.
26Counsel for the applicant also argues that the arbitrator cannot be said to have dealt with the substance of the Application appropriately because she does not address the whole issue of the applicant’s alleged learning disability, which would form part of the Application if the request to amend is granted.
27The jurisprudence on s. 45.1 has made repeated reference to the need for finality in litigation. A litigant cannot continue to make claims with respect to the same set of facts by simply altering their theory of the case. As aptly noted by the Supreme Court of Canada in Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, at para. 18, "The law…requires litigants to put their best foot forward to establish the truth of their allegations when first called upon to do so. A litigant, to use the vernacular, is only entitled to one bite at the cherry…"
28The applicant does not argue that he asked his union to advance the argument with respect to the learning disability and that the SEIU refused to do so. Indeed, when he filed his Application during the period in which his grievance was at arbitration, he likewise made no reference to an alleged learning disability. It would appear that his counsel made allegations about a learning disability in 2008 in order to effect changes to the testing process, and once those were made, this allegation was dropped. It was resurrected seemingly in response to the respondents’ respective requests to dismiss.
29On the basis of the material before me, I find that the May 19, 2009 decision of Arbitrator Trachuk appropriately dealt with the substance of the Application against both Sun Parlour and Essex-Windsor. Accordingly, I am exercising my discretion to dismiss this Application under s. 45.1 of the Code. In light of the dismissal, it is unnecessary for me to address the applicant’s request to amend his Application.
Dated at Toronto, this 3rd day of November, 2010.
"signed by"____________
Naomi Overend
Vice-chair