Boyd v. Toronto (City), 2010 HRTO 607

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kenneth Boyd

Applicant

-and-

City of Toronto and Frank Mitchell

Respondents

-and-

Toronto Professional Fire Fighters’ Association

Intervenor

INTERIM DECISION

Adjudicator: David A. Wright

Date: March 22, 2010

Citation: 2010 HRTO 607

Indexed as: Boyd v. Toronto (City)

Appearances

Kenneth Boyd, Applicant ) Kim Brooks, Representative

Toronto Professional Fire )

Fighters’ Association and ) Howard Goldblatt, Counsel

Scott Marks, Respondents )

City of Toronto and James Shelton, ) Kerri Kitchura, Counsel

Frank Lamie, Frank Mitchell and )

Susan Lawler, Respondents )

1This Interim Decision records oral rulings made in the hearing in this matter on March 16, 2010 regarding the removal of respondents and case management in this Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended. The Application alleges discrimination on the basis of disability in employment, and as filed named the City of Toronto (the employer), the Toronto Professional Fire Fighters’ Association (the applicant’s bargaining agent) and various individuals. A previous Interim Decision in this and other Applications is reported as Hansen v. Toronto (City), 2010 HRTO 13.

2The Association and its President, Scott Marks, sought to be removed as respondents. The Tribunal made the following oral ruling on this issue:

1. Having considered the submissions of the parties, I find that the Application does not raise allegations within the meaning of the Human Rights Code, R.S.O. 1990, c. H.19 (the “Code”) against the Toronto Professional Fire Fighters’ Association or Scott Marks, its president at the relevant time.

2. This Tribunal has held on numerous occasions that the actions, or failure to act, of an individual’s collective bargaining representative on human rights issues are not, in and of themselves discrimination. In Traversy v. Mississauga Firefighters’ Association, 2009 HRTO 996, the Tribunal stated as follows, at para. 33:

Assuming that the Code also applies to this aspect of a union’s relationship with the employees it represents, a claim that the union violates the Code must be based on an assertion of differential treatment, and not simply a failure to act. 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: see Baylet v. Universal Workers Union, 2009 HRTO 700. There must be a claim, and a factual foundation for the claim, that the failure to act was based on discriminatory factors.

3. To similar effect are Arias v. Centre for Spanish Speaking Peoples, 2009 HRTO 1025 at paras. 16-18 and Hazel v. Ainsworth Engineered, 2009 HRTO 2180 at paras. 59.

4. The allegations of the applicant, put at their highest, are that the Association was aware or ought to have been aware of misstatements made by a representative of the employer regarding the accommodation process, and that it was involved in communicating decisions of the employer about the accommodation process. Such actions by a union or association are not violations of the Code.

5. It is well established that the accommodation process in a unionized workplace is a three-way process involving the employee, the union and the employer: see, for example, Halifax (Regional Municipality) and Municipal Assn. of Police Personnel (2002), 2002 CanLII 79066 (NS LA), 105 L.A.C. (4th) 232 (Outhouse). However, the union’s mere participation in that process, or failure to take the same position as an employee in that process, does not make it liable under the Code for the ultimate accommodation offered by the employer if this accommodation is found to violate the Code. There is no allegation in this case that the Association attempted to use its collective agreement rights to block an accommodation that the employer was willing to provide, and I leave for another day the question of whether such actions may be a violation of the Code.

6. The applicant does allege that the Association might have made different decisions in the accommodation and grievance process if the applicant was returning from a leave that had no relation to disability. That is self-evident, but there is no allegation that the Union was not considering each grievance on its merits or targeting particular groups through its policy of deciding which grievances to pursue.

7. As there are no allegations made against these parties that fall under the Code, the Application is dismissed as against the Toronto Professional Fire Fighters’ Association and Scott Marks. The Association shall advise the Tribunal within ten days whether it seeks status as an intervenor.

3The Tribunal also made the following oral ruling on the issue of personal respondents:

1. On consent, the personal respondents Deputy Chief Shelton and Deputy Chief Lamie are removed as respondents and the style of cause is amended accordingly.

2. The remaining issue is whether Frank Mitchell and Susan Lawler should remain as personal respondents, in light of the principles set out at para. 5 of Persaud v, Toronto District School Board, 2008 HRTO 31.

3. As noted in Sigrist and Carson v. London Catholic District School Board, 2008 HRTO 14 at para. 42, “the naming of personal respondents is a practice to be discouraged”. There are various reasons for this. Commencing of a human rights application is a serious matter, and for an individual named as a respondent, there is often, understandably, significant personal stress Individuals should not suffer such stress or feel related stigma unnecessarily.

4. The effects, however, are not only on the personal respondent. As noted in various cases, naming multiple personal respondents adds to the complexity of the case and often results in delay. The need for the Tribunal to deliver applications to personal respondents and allow them to respond, and the time to address issues of whether they are properly named, will often delay matters to the detriment of applicants, respondents, and the Tribunal’s process.

5. There are particular reasons to discourage naming a large number of personal respondents in light of the Tribunal’s jurisprudence. It will be rare cases, for example, where many individuals played a “central role” in the alleged discrimination.

6. Turning to the merits of the request, there is no question of the City’s liability for any actions alleged in this Application, and it has accepted vicarious liability for any violation of the Code by the alleged personal respondents. The central issue is whether there is an allegation of a breach of the Code by Mr. Mitchell or Ms. Lawler that means they should remain as respondents.

7. In my view, Mr. Mitchell should not be removed as a respondent at this stage of the proceedings. There are allegations about personal misconduct in the accommodation process that suggest that he was acting outside of the scope of the employer’s policies and a good faith interpretation of the employer’s obligations under the duty to accommodate. In view of the allegations about his particular role in the events, it would not be appropriate to remove him as a party before hearing any evidence.

8. However, there are no such substantive allegations against Ms. Lawler. The vague assertion that she was connected with Mr. Mitchell’s actions does not suggest a compelling reason to continue this process against her. It would not be fair or just that she remain as a party in order for the merits of this Application to be determined. Accordingly, Ms. Lawler is removed as a respondent and the style of cause is amended accordingly.

4The following orders were also made on consent:

1. The Toronto Professional Fire Fighters’ Association is granted intervenor status.

2. The parties shall disclose arguably relevant documents in accordance with Rule 16.1 by April 5, 2010.

3. The parties shall deliver and file any Requests for Order During Proceedings regarding disclosure, in accordance with Rule 19, including full written argument in support of the request, by April 20, 2010.

4. The parties shall deliver and file full written argument in response to any Requests for Order During Proceedings regarding disclosure filed by other parties by May 4, 2010.

5. The parties shall deliver and file any reply argument on their Requests for Order During Proceedings by May 11, 2010.

6. By July 15, 2010, the applicant shall deliver and file a detailed explanation of exactly how he alleges that the respondents violated the Code, together with complete signed written witness statements for all witnesses he wishes to call who are willing to do so voluntarily. For any witnesses the applicant wishes to call who are not willing to sign a witness statement, the applicant shall provide a list of questions intended to be asked of that witness.

7. By September 15, 2010, the respondent shall deliver and file a detailed explanation of exactly how it alleges that it accommodated the applicant to the point of undue hardship and did not violate the Code, together with complete signed written witness statements for all witnesses it wishes to call.

8. By October 1, 2010, the intervenor shall provide a detailed written explanation of its theory of the case, together with complete signed written witness statements for all witnesses it wishes to call.

9. A case conference shall be held to discuss the next steps in this Application on October 19, 2010. A formal notice will follow from the Registrar’s Office.