HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Mark Rodgers
Applicant
-and-
Hydro One Networks Inc.
Respondent
DECISION
Adjudicator: Mark Hart
Indexed as : Rodgers v. Hydro One Networks
APPEARANCES BY
Mark Rodgers, Applicant ) Hugh Scher, Counsel
Hydro One Networks Inc., Respondent ) Dana McDonald, Counsel
) and James Chang, Student
1This is an Application made under s. 53(3) of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), filed December 30, 2008. The underlying complaint was filed with the Ontario Human Rights Commission (the “Commission”) on January 12, 2007.
2The applicant alleges that he experienced discrimination in employment because of disability contrary to ss. 5 and 9 of the Code, arising out of certain statements and actions by representatives of the respondent during the period from March 2005 to October 2006.
3The case resolution conference (hearing) in this matter was held on August 19, October 25 and December 15, 2010, in accordance with the expectation, expressed in the Code and the Tribunal’s Rules of Procedure for Transitional Applications, that section 53 applications proceed in an expeditious manner. On consent of all parties, I took the lead in questioning the witnesses and heard from the applicant and six witnesses called by the respondent. Cross-examination of the applicant was commenced following his evidence-in-chief, but following the end of the first day of hearing was deferred on consent to be completed after hearing from three respondent witnesses.
Background
4This proceeding takes place in the context of a consolidation of the respondent’s warehouse operations that was undertaken in early 2005, which involved the closing of nearly all satellite warehouses to be consolidated into one central warehouse in Barrie, Ontario.
5At this time, the applicant was employed by the respondent as a Stockkeeper working at a satellite warehouse located in Brantford, Ontario. This was one of the warehouses to be closed by the respondent as part of its consolidation.
6The applicant suffers from coronary artery disease for which he underwent triple bypass surgery on September 29, 2004. As a result of this medical condition, the applicant was off work on sick leave for an extended period of time in 2004 and early 2005.
7On February 15, 2005, the applicant informed the respondent that he was able to return to work and sought information as to what was required to do so. On February 17, 2005, the applicant was informed that he either could ask his doctor to fax a letter to the respondent’s Health Services department with clearance to return to work and detailed work restrictions, or he could wait and Health Services would send out a follow-up report that he could take to his doctor for completion. On February 21, 2005, the applicant requested that a follow-up report be sent to him, and this was done on February 23, 2005.
8At the same time, the respondent was involved in discussions with the Power Workers’ Union (“PWU” or the “union”) regarding the field staffing positions affected by the warehouse consolidation. On February 28, 2005, the respondent and the PWU jointly announced that they had reached agreement regarding the field staffing positions, and an announcement was sent to all PWU represented warehouse staff advising them of this agreement and that letters would be sent out over the following week regarding staff redeployment or other options available under Article 11 of the collective agreement, which deals with worksite redeployment.
9On March 2, 2005, a letter was sent to the applicant notifying him that the respondent was invoking the Article 11 process as a result of the closure of the Brantford warehouse and advising him that he would be eligible for redeployment to one of the field positions within the respondent’s Provincial Lines operation or at the new Distribution Centre in Barrie. The available positions were set out on a sheet enclosed with this letter, and the applicant was asked to rank the available positions in accordance with his preference. Under the collective agreement, the available positions would be assigned in accordance with seniority.
10A meeting was scheduled for March 17, 2005, to discuss the applicant’s return to work. This meeting was attended by Pat Johnson, a Human Resources Consultant; Irene Manuel, Warehouse Operations Manager; the applicant; and his union representative, Rudy Kerec. The day before this meeting, the applicant submitted the follow-up medical report to the respondent’s Health Services department, which attached a handwritten note from his doctor, Dr. Cluett, describing the following work restrictions:
Mr. Rodgers requires time to participate in the cardiac rehabilitation program Monday and Wednesday mornings in Ingersoll.
He should be kept fully informed in a timely manner by his employer concerning the location of this job and conditions of his work.
Mr. Rodgers must not be subjected to forced relocation of his job and should work on a permanent basis within reasonable commuting distance of his current residence i.e. he should not be forced to participate in the selection process for work relocation.
11These restrictions were reviewed by the respondent’s Chief Physician, who advised Ms. Johnson and Ms. Manuel of the restrictions prior to the March 17, 2005 meeting and indicated that the second and third restrictions were Human Resources / management issues. This assessment by the respondent’s Chief Physician led to a discussion about the applicant’s work restrictions at the March 17, 2005 meeting which is the subject of some of the allegations raised by the applicant in this proceeding and will be discussed in more detail below.
12On March 24, 2005, the applicant returned the preference ranking form that he had been provided in relation to the warehouse consolidation, which he signed but did not complete. The applicant wrote on the form that he was declining to participate in the Article 11 process in accordance with instructions from qualified medical professionals and because this would endanger his health and safety. With this form, the applicant enclosed a letter from his psychologist, Dr. Prior, dated March 24, 2005, which essentially confirmed the restrictions which had been set out by Dr. Cluett.
13On March 30, 2005, the applicant was sent a letter by his manager, Ms. Manuel, stating that as a result of the Article 11 process, he would continue in his classification as Stockkeeper and a position would be held for him at the Barrie warehouse. However, the letter also stated that in light of ongoing discussion relating to the applicant’s restrictions, the direction to report to his new work location was postponed pending a decision by the respondent’s Chief Physician and its Labour Relations representatives.
14On April 5, 2005, the Human Resources Consultant, Ms. Johnson, wrote to Mr. Kerec, the applicant’s union representative, to advise that the respondent’s Chief Physician, Dr. Morrison, had completed his review of the medical documentation provided by the applicant, and had concluded that the medical information was insufficient as it did not provide a medical basis for the stated opinions. Ms. Johnson asked Mr. Kerec to have the applicant provide authorization and consent for Dr. Morrison to speak to all of the applicant’s medical community, which included Dr. Cluett, Dr. Prior, and several other doctors copied on Dr. Prior’s letter. Ms. Johnson stated in her e-mail that it was important that this authorization be provided in a timely manner. She also stated that the applicant was not able to refuse to participate in the Article 11 process, and that he had been assigned to the Barrie warehouse as a result of that process. Ms. Johnson’s e-mail was forwarded to the applicant by his union representative on April 6, 2005.
15When no authorization and consent was provided by the applicant, the respondent sent him a letter dated April 28, 2005 from its Manager – Supply Chain Management, to whom Ms. Manuel reported as Warehouse Operations Manager. Ms. Maloney’s letter reviewed the history of the matter, including the request for consent and authorization made by Ms. Johnson on April 5, 2005. Ms. Maloney further noted that she herself had followed up with the PWU Chief Steward two weeks later and asked him to contact the applicant regarding this consent, as the respondent had not received it. The letter required the applicant to provide the requested authorization and consent by May 2, 2005, in order for him to continue receiving sick leave payments. This letter also is the subject of allegations before me in this proceeding, and will be discussed in greater detail below.
16On May 5, 2005, the applicant’s then legal counsel provided a limited consent to the respondent to enable Dr. Morrison to contact the applicant’s current lead physician, Dr. Cluett, for the limited purpose of clarifying his current capacity to return to work. Counsel’s letter states that if Dr. Morrison required any additional information or assessment of the applicant subsequent to his discussion with Dr. Cluett, the respondent should contact counsel’s office immediately and the appropriate accommodation would be made. There is no dispute that Dr. Morrison did not contact Dr. Cluett following receipt of this limited consent.
17In the meantime, the applicant through his union had filed a grievance challenging the requirement that he participate in the Article 11 process and alleging that his disability was not being appropriately accommodated. This grievance proceeded to arbitration before Martin Teplitsky on June 24, 2005. At the hearing, Mr. Teplitsky granted the respondent’s request for an adjournment on terms that included a requirement for the applicant to provide consent to Dr. Morrison to speak with all of his physicians and/or providers of medical care about the restrictions in Dr. Prior’s report of March 24, 2005. This consent was signed by the applicant on June 29, 2005, and provided to the respondent the following day by union counsel.
18Following receipt of this consent, Dr. Morrison corresponded with the applicant’s doctors by letter dated July 21, 2005 requesting a detailed summary of any medical condition that the applicant had that would affect his employability at the respondent with respect to his work, including the history, findings on examination, results of investigations, treatments to date with responses, and any impairments whether temporary or permanent. For any psychiatric condition, Dr. Morrison requested the diagnosis as per DSM-IV code (including all five axes) plus the conditions present to satisfy this diagnosis. In particular, Dr. Morrison asked whether the applicant was medically restricted from moving away from his current residence in Tillsonburg, Ontario, and if so, the reason why he was medically restricted and for how long this restriction would remain in place. Dr. Morrison also asked whether there was a medical reason why the applicant could not be re-located to Barrie, given the medical facilities there, the security of his Stockkeeper position in Barrie, and the re-location assistance provided to him by the respondent. If the answer to this question was yes, Dr. Morrison requested elaboration as to why the applicant was unable to re-locate to Barrie.
19The applicant’s doctors responded during the course of late July and early August 2005. In particular, Dr. Prior, the applicant’s psychologist, provided an extensive and detailed letter setting out a summary of the applicant’s psychological condition, its course over treatment, a DSM-IV diagnosis, and detailed responses to the specific questions posed by Dr. Morrison. Detailed letters also were sent to Dr. Morrison by the applicant’s psychiatrist, Dr. Keshav, and his family physician, Dr. Cluett, both of which supported the restrictions recommended by Dr. Prior.
20Following receipt of this additional medical information, the parties entered into an agreement dated September 24, 2005, whereby the applicant was assigned to a Field Business Clerk position in Beachville, Ontario for a one-year rotation commencing on October 3, 2005. The respondent also agreed to make its best efforts to find a permanent position for the applicant within the identified workplace restrictions prior to expiry of the one-year rotation. The agreement provided that the arbitrator, Mr. Teplitsky, was seized to resolve any issues regarding the interpretation, administration and application of this agreement. The agreement was signed by representatives of the respondent and the union and by the applicant.
21On June 5, 2006, while working in his rotation at the Beachville Field Business Centre, the applicant met with his supervisor and requested an investigation under the respondent’s Workplace Human Rights and Anti-Harassment Policy (the “Human Rights Policy”). The following day, the applicant was advised by his supervisor that since this issue was the subject of a grievance settlement, it would be more appropriate for the issue to be raised through the union if the applicant felt that the respondent had violated the settlement. The applicant was informed that pursuant to the Human Rights Policy, if an issue is already the subject of a grievance, an employee cannot file a harassment complaint until after the grievance has been settled. It was subsequently clarified with the applicant on June 7, 2005, in response to this request, that this did not preclude him from filing a complaint with the Ontario Human Rights Commission. The respondent’s response to the applicant’s request for an investigation also forms the basis for one of the allegations before me, and will be discussed in greater detail below.
22By the latter part of September 2006, the applicant was nearing the end of his one-year rotation in the Beachville office and no permanent position had been found for him. As a result, the applicant contacted the Ministry of Labour and raised a health and safety complaint. A Health and Safety Inspector attended at the Beachville office on September 21, 2006, and met with the applicant and three management representatives. A statement made by one of the management representatives, Brent Clarke, at this meeting is the subject of an allegation in this proceeding, and is addressed in detail below.
23As a result of this meeting, the Ministry Inspector recorded that the parties had agreed to try to resolve the issue internally and would re-convene on October 23, 2006. There is no dispute that no further meeting with the Ministry Inspector was held. Laurie Skinner, the Superintendent for the zone in which the applicant worked, was present in the Beachville office on October 23, 2006, and spoke with the applicant. What Mr. Skinner said also is the subject of allegations before me in this proceeding, and will be discussed in detail below.
24The applicant remained in his position at the Beachville office pending a further appearance before the arbitrator, Mr. Teplitsky, on December 1, 2006. On that date, the hearing was adjourned to mid-January 2007 on the basis that the status quo would remain pending an award of a permanent position or further arbitral award.
25On January 11, 2007, the applicant was confirmed in a permanent position as Field Scheduling Clerk at the Beachville office. The matter returned to Mr. Teplitsky on March 7, 2007, and was concluded by an award on that date addressing the application of the retrogression policy under the collective agreement.
This Tribunal’s Prior Decision dated November 4, 2009
26By Interim Decision dated November 4, 2009 (2009 HRTO 1871), this Tribunal found that the subject-matter of the applicant’s human rights complaint which underlies this Application was comprised of two distinct components. It was found that a primary focus of the complaint related to allegations that the respondent failed to accommodate the applicant’s disability in connection with the re-organization of its warehouse operations. In addition, it was found that the complaint also placed reliance on alleged statements of certain named individuals as the framework for an argument that the applicant had been subjected to harassment because of his disability.
27The Tribunal found that s. 45.1 of the Code, which provides that the Tribunal may dismiss an application, in whole or in part, if it is of the opinion that another proceeding has appropriately dealt with the substance of the application, prevented the Tribunal from considering the Application as it relates to accommodation of the applicant’s disability.
28However, at the same time, the Tribunal found that the harassment allegations raised in the complaint could proceed. Specifically, at paragraph 38 of the Interim Decision, it was stated that “the applicant in his OHRC complaint asserted that there were three separate statements made by members of the management team of Hydro One that constituted a pattern of harassment contrary to s. 5(2) of the Code. In particular, reliance was placed on the following purported statements:
On March 17, 2005 Ms. Pat Johnson in a meeting suggested that “anyone” could get a letter from their doctor.
On September 21, 2006 Mr. Brent Clarke referred to the applicant’s request for an investigation by the Minister of Labour, Occupational Health and Safety Inspector as a “back stab”.
On October 23, 2006 Mr. Laurie Skinner indicated that he did not see the issues raised by the applicant as a health and safety issue but as labour relations issues. Mr. Skinner went on to explain that he wants certain people in certain jobs therefore it is necessary to follow the “process”.
29The Tribunal found that the questions as to whether the above statements were in fact made and, if so, whether they constitute harassment were not addressed in the litigation associated with the grievance filed on the applicant’s behalf, and accordingly had not been appropriately dealt with as part of a prior proceeding and were not barred by s. 45.1 of the Code. As a result, the Application, as it related to allegations of harassment set out in paragraph 3 of the complaint dated January 12, 2007, was allowed to proceed.
30It is this aspect of the Application that is before me for determination in this proceeding.
Scope of Application
31Prior to the hearing and in accordance with the Tribunal’s Rules for Transitional Applications, the applicant filed a statement of additional facts which related allegations of harassment extending back to 1993, raised allegations of harassment not set out in the applicant’s human rights complaint, and raised allegations of reprisal which post-dated the filing of his complaint with the Commission.
32The respondent raised a preliminary objection to these allegations being raised by the applicant, upon which I heard oral submissions from all parties on the first day of hearing.
33After hearing and considering the submissions of the parties, I made a ruling as to what allegations were properly within the scope of the remaining aspect of the Application.
34With regard to allegations of harassment because of disability which pre-dated the matters raised in the complaint, I held that I was not at all satisfied that allegations relating to incidents from 2000 and prior were properly within the scope of the harassment allegations in the complaint. The applicant’s complaint expressly deals with events from 2005 and 2006, and sets out detailed allegations in relation to these events. The only reference to prior events in the complaint is the statement that the respondent “was informed of the consequences of the employer’s action to [the applicant’s] health on July 20, 2000”. No particulars are provided in the complaint as to what actions of the respondent were alleged to have had such impact on the applicant’s health as of July 2000. Nor were such allegations addressed by this Tribunal in its Interim Decision dated November 4, 2009, which expressly specified that the allegations in the complaint that remained for determination related to events in 2005 and 2006.
35In any event, I further held that even if these earlier allegations were somehow captured by the applicant’s complaint, they would be dismissed for delay pursuant to s. 34(1) of the Code. This Tribunal has held that, in relation to transitional applications, the one-year period prior to the filing of the underlying complaint is the relevant period for the application of s. 34(1) of the Code: Taylor-Wright v. York University, 2010 HRTO 312.
36The applicant’s statement before me indicates that he submitted a complaint to the Commission on October 23, 2006, and then re-submitted a revised complaint on January 12, 2007. The complaint attached to the Application is the revised complaint dated January 12, 2007. It is unclear from the material before me whether the applicant actually filed a complaint with the Commission on October 23, 2006, which was subsequently amended by the Commission. Certainly, the documents before me are not consistent with the issuance of an amended complaint by the Commission on January 12, 2007, which indicates to me that this is the date on which the complaint was actually filed with the Commission, in the sense that it was accepted and issued by the Commission.
37In any event, even if the applicant’s original complaint was filed with the Commission on October 23, 2006, the relevant one-year period would only extend back to October 23, 2005. Pursuant to s. 34(1)(b) of the Code, allegations relating to events prior to this one-year period may nonetheless be properly raised if they form part of a “series of incidents” that extends to and encompasses events within the one year period. In this regard, I accept and agree with the reasoning of Vice-Chair Muir in Chintaman v. Toronto District School Board, 2009 HRTO 1225, that “a gap of more than one year between incidents in a series would in most cases interrupt the series” (see para. 11).
38In the instant case, there is a gap of almost five years between events from 2000 and prior and the allegations from 2005 and 2006. Given this extended gap, I found that the events from 2000 and prior did not form part of a “series of incidents” within the meaning of s. 34(1)(b) of the Code and thereby were being raised by the applicant well outside the one-year time period.
39As a result, I next needed to consider whether the applicant had established that his delay in raising these allegations was incurred in good faith and that no substantial prejudice had been caused to the respondent as a result of the delay. In relation to the requirement to establish that the delay was incurred in good faith, this Tribunal has held that the onus is on the applicant to provide some reasonable explanation for the delay: Imrie-Howlett v. Peel District School Board, 2009 HRTO 1339.
40In the instant case, I found that the applicant had not provided a reasonable explanation for the delay in raising the harassment allegations relating to events from and prior to 2000. The applicant’s first explanation for this delay is that he was not aware of his rights under the Code, and that the matter then became a moot point because the alleged harassment related to attempts to move his work location and this ultimately did not happen. As this Tribunal previously has held that there is an obligation on an applicant to inform himself of his rights under Code, I did not accept this as a good faith explanation for the delay.
41The applicant’s further explanation was that he was still addressing issues with his union at the time, and the union was not acting upon them. I found that, as no grievances were filed relating to the events from this time period, it would have been apparent to the applicant at this time that these issues not being addressed by the union. As a result, I found that this too did not provide a good faith explanation for the delay.
42Accordingly, I ruled that I would not deal with the applicant’s allegations of harassment because of disability based on events from 2000 and prior as part of alleged violations of the Code in this proceeding.
43I also ruled that, for the reasons set out in this Tribunal’s caselaw, I would not deal with the applicant’s reprisal allegations which post-date the complaint. As stated above, this is a transitional application filed pursuant to s. 53(3) of the Code. Section 53(3) of the Code provides that the complainant may make an application to the Tribunal “with respect to the subject-matter of the complaint”. Rule 6.3 of the Tribunal’s Transitional Rules, which addresses applications under s. 53(3), states in its relevant part that “Applications made in accordance with these Rules must be based on the subject matter of the complaint or amended complaint filed at the Commission and the Tribunal will not entertain preliminary requests to add grounds [or] expand the subject matter of the complaint”. This Tribunal’s caselaw with respect to transition applications has held that, except in very limited circumstances, an applicant will not be permitted to raise new allegations that did not form part of the complaint or amended complaint filed at the Commission: see DeFreitas v. Ontario Public Services Employees Union, 2010 HRTO 281.
44I did, however, rule that I would deal with certain allegations from the relevant time period which went beyond the three specific allegations set out in this Tribunal’s prior Interim Decision.
45I ruled that in addition to the allegation referenced in the Interim Decision that at a meeting on March 17, 2005, Ms. Johnson suggested that “anyone” could get a letter from their doctor, I also would deal with the allegation that at this meeting the applicant was coerced by Ms. Johnson to apply for long-term disability (“LTD”) benefits even though his doctor said that he was capable of returning to work, as this allegation arises out of the same meeting.
46I also ruled that I would deal with the allegation that Irene Manuel attempted to coerce the applicant to take a buyout in or around the time of the March 17, 2005 meeting, as this allegation is raised in paragraph 3 of the complaint.
47I ruled that I would deal with the allegations raised in paragraph 34 of the applicant’s statement of additional facts regarding an alleged threat to cut off his sick time on March 25, 2005, and in paragraph 37 in relation to the April 28, 2005 letter from Ms. Maloney and the threat to cut off the applicant’s sick leave if he failed to provide authorization and consent for Dr. Morrison to speak with his entire medical community. The allegation regarding Ms. Maloney’s letter is raised in paragraph 4 of the complaint, and it is my view is an allegation of harassment in relation to these events that is not reasonably caught by the Tribunal’s prior Interim Decision. I ruled that I would consider the allegation about the alleged threat on March 25, 2005, as it is of the same nature as the allegation about Ms. Maloney’s letter and is within the relevant timeframe.
48I ruled that I would deal with the allegation in paragraph 46 of the applicant’s statement of additional facts regarding the applicant being told on June 6, 2006, that he could not file an internal human rights complaint under the respondent’s Human Rights Policy, as this allegation is raised in paragraph 8 of the complaint and is not reasonably caught by the Tribunal’s prior Interim Decision.
49With regard to the information set out in the applicant’s statement of additional facts and repeated in his willsay statement about his allegations of harassment dating from 2000 and prior that I had found to be beyond the scope of the subject matter of his human rights complaint, I ruled that I was prepared to accept this information as background and chronology only but would not give any weight to and did not want to hear oral evidence from the applicant or any other witnesses regarding these events.
50Given the large gap in time between these prior events and the events from 2005 and 2006 at issue in this proceeding, I did not find that evidence regarding these prior alleged incidents would provide me with any helpful context to assess whether the 2005 and 2006 events amount to a violation of Code, nor did I find that these prior alleged incidents would provide me with any assistance in fashioning any award or remedy, which would need to relate to and arise from any of the 2005 or 2006 events that I found violated the Code. I also expressed concern about the unfairness to the respondent of requiring it to respond to evidence regarding events that date back some 10 years and more, and involve different individuals than were involved in the 2005 and 2006 allegations at issue.
Allegations within scope of Application
a) Allegations regarding Pat Johnson
51As stated above, the applicant alleges that at a meeting on March 17, 2005, Ms. Johnson suggested that “anyone” could get a letter from their doctor, and that at this same meeting he was coerced by Ms. Johnson to apply for long-term disability (“LTD”) benefits even though his doctor said that he was capable of returning to work.
52Ms. Johnson does not dispute that she made a statement to the effect that anyone can find a doctor who will write whatever an employee wants. Her evidence is that it was her practice to make such a statement, in the context of explaining to employees that when the respondent is required to make exceptions to the collective agreement that can disadvantage other employees based on the recommendations of a personal physician, Dr. Morrison, the respondent’s Chief Physician, needs to see the diagnostic information to validate the recommendations.
53There is a dispute in the evidence as to whether the applicant took umbrage with Ms. Johnson’s statement during the meeting. Ms. Johnson says he didn’t. The applicant says that he expressed his displeasure by getting up and walking out of the meeting. There is no doubt that the applicant made reference to the comment in an e-mail to his union representative the day after the meeting, in which he characterizes Ms. Johnson’s statement as “insulting, belittling and an attempt to trivialize the seriousness of my condition, as well as calling into question the integrity of the physicians treating me”. While it is not alleged that this e-mail correspondence was brought to Ms. Johnson’s attention at the time, it clearly indicates that at least by the day after the meeting, the applicant was upset about Ms. Johnson’s statement.
54In my view, Ms. Johnson’s comment was unfortunate. While it would be naïve of me to believe that family doctors never write notes for employees that simply regurgitate what the employee wants them to say, that does not appear to be what was happening in this case. Dr. Cluett’s handwritten note setting out the three restrictions, which was under discussion at the March 17, 2005 meeting, was based upon the recommendations of the applicant’s psychologist, Dr. Prior, and were medically supported on the basis set out in Dr. Prior’s letter to Dr. Morrison from August 2005. The problem in the applicant’s case was not that his family doctor simply had written what the applicant wanted him to say, but that the restrictions put forward by Dr. Cluett were not readily relatable to the medical condition, coronary artery disease, for which the applicant had been off work (with the exception of the first restriction regarding attendance at a cardiac rehabilitation program), were highly unusual, and were not provided with any medical support to substantiate why they were related to and required to accommodate a disability with which the applicant had been diagnosed.
55As a result, I take no issue with statements made by Ms. Johnson at the March 17, 2005 meeting regarding the need for medical substantiation to support the restrictions recommended by Dr. Cluett. While applicant’s counsel and Ms. Johnson engaged in an extended discussion on cross-examination as to the nature of “objective medical evidence”, the fact is that, once authorization and consent had been provided to Dr. Morrison, he was able to clearly articulate what he was looking for in a way that was understood and responded to by several of the applicant’s doctors, but in particular by Dr. Prior.
56I am, however, concerned with Ms. Johnson’s statement that anyone can find a doctor to write whatever they want. The legal question for me to determine is whether this comment amounts to “harassment” within the meaning of the Code or otherwise supports a finding of a Code violation. Under s. 10 of the Code, “harassment” is defined as a “engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome”.
57In order to sustain a complaint in harassment because of disability under subsection 5(2) of the Code, this Tribunal has held that it is necessary to establish the following elements:
The respondent engaged in a course of vexatious comment or conduct;
At the relevant times the complainant was an employee and the respondent was the employer or agent of the employer;
That the comment or conduct complained of was known, or ought reasonably have been known to be unwelcome; and
That the conduct complained of was for the reason that the complainant has or is believed to have a . . . disability.
See Boehm v. National System of Baking Ltd. (1987), 1987 CanLII 8515 (ON HRT), 8 C.H.R.R. D/4110 (Ont. Bd.Inq.) at para. 32565.
58In Ghosh v. Domglas Inc. (No. 2) (1992), 1992 CanLII 14247 (ON HRT), 17 C.H.R.R. D/216 (Ont. Bd.Inq.), these four requirements were summarized as follows:
a course of vexatious behaviour;
by an employer, employer’s agent or fellow employee;
known (actually or constructively) to be unwelcome;
because of a protected ground under the Code.
59In my view, there are actually six elements of workplace harassment under s. 5(2) of the Code and it is helpful to separate them out. In Boehm and Ghosh, supra, the distinct requirements that the comment or conduct be “vexatious” and that there have been a “course” of such comment or conduct are combined, when they actually point to quite different aspects of the alleged behaviour at issue. In addition, neither of these cases references the statutory requirement in s. 5(2) of the Code that the harassment must have been “in the workplace”.
60Accordingly, the six elements required to establish workplace harassment under s. 5(2) of the Code are:
a course of comment or conduct;
in the workplace;
by an employer, employer’s agent or fellow employee;
that is vexatious;
that is known or ought reasonable to be known to be unwelcome;
because of a protected ground under the Code.
61There is no doubt that the comment made by Ms. Johnson was made in the workplace by an employee of the respondent.
62The requirement that the comment or conduct be “vexatious” imports a subjective element into the definition of harassment, and requires that the comment or conduct must be annoying, distressing or agitating to the applicant: Wall v. University of Waterloo (1995), 1995 CanLII 18161 (ON HRT), 27 C.H.R.R. D/44 (Ont. Bd.Inq.), at para. 144. In the instant case, in view of the e-mail sent by the applicant to his union representative on the day after the meeting in which he characterizes the comment as insulting, belittling and an attempt to trivialize the seriousness of his condition, I find that the comment was vexatious to him.
63I also find that Ms. Johnson ought reasonably to have known that this comment was unwelcome. While I accept her evidence that what she was intending to point out to the applicant was the lack of objective medical support for some highly unusual restrictions that were not readily relatable to the condition for which he had been off work, that is not the message that she conveyed when she made the statement that anyone can find a doctor who will write whatever they want. What she in fact is suggesting by making that statement is that it is possible that the applicant did just that: that he wanted to avoid going through the Article 11 process and simply told his doctor to recommend restrictions which were not medically supported. By raising this possibility, Ms. Johnson was suggesting, in the words of applicant’s counsel, that the applicant might be “gaming the system” without any actual knowledge that this was the case (which in fact it turned out not to be). By raising this possibility without any actual knowledge that this is what the applicant was doing, I find that Ms. Johnson reasonably ought to have known that her comment was unwelcome.
64I further find that the comment was “because of” the applicant’s disability, given that the comment was made expressly in the context of a medical note provided by the applicant’s doctor about the restrictions arising from his disability.
65I do not, however, find that this comment was part of any “course” of comment or conduct in violation of the Code. As is discussed below, I do not find that any of the other allegations raised in this proceeding amount to “harassment”, such that all that I am left with is one unfortunate comment made by Ms. Johnson at the meeting on March 17, 2005. While I appreciate that, in appropriate circumstances, a single incident, if sufficiently serious, can meet the definition of harassment, and repeated conduct is not essential to a finding that the Code has been violated, the kinds of single incidents which have been held to meet the required standard have been quite serious, such as a sexually explicit remark that is clearly demeaning and attacks the dignity and self-respect of a woman based on her gender: see Romano v. 1577118 Ontario Inc., 2008 HRTO 9, at paras. 64 to 69. In my view, while Ms. Johnson’s comment was unfortunate, I do not find that it rises to the level required for a single incident to amount to harassment or discrimination under the Code.
66The other allegation against Ms. Johnson is that she “coerced” the applicant to apply for long-term disability benefits even though his doctor said that he was able to return to work. The evidence does not establish that Ms. Johnson “coerced” the applicant in any way. At the time, the applicant was in a position where he was exhausting his sick leave credits. Once an employee exhausts sick leave credits, the only other option for the employee to maintain an income is to apply for LTD benefits. Ms. Johnson’s evidence is that, even if the applicant did not qualify for LTD benefits at this time, there was always the potential for relapse such that she believed it to be in his interests to have his paperwork submitted. Ms. Johnson’s approach to applying for LTD benefits is supported not only by her witness statement and oral evidence, but by an e-mail she sent to the applicant’s union representative on January 19, 2005, encouraging the applicant to apply for LTD. While Ms. Johnson’s suggestion that the applicant apply for LTD benefits may have been subjectively vexatious to him, I do not find that Ms. Johnson knew or ought reasonably to have known that this suggestion was unwelcome.
b) Allegation against Irene Manuel
67In his complaint, the applicant alleged that Ms. Manuel harassed him by “coercive attempts to force [his] self-termination and threatening statements regarding cuts to [his] pay”. No particulars were provided in the complaint as to what exactly Ms. Manuel is alleged to have said or done in this regard, or when this is alleged to have occurred.
68In his evidence at the hearing, the applicant made reference only to a comment alleged to have been made by Ms. Manuel at the March 17, 2005 meeting to the effect that if he wasn’t prepared to follow the Article 11 process, then termination was the alternative. When I asked specifically whether Ms. Manuel used the word “termination”, the applicant responded that her comment would have been framed in terms of the language of the collective agreement.
69Regrettably, due to her ill health, Ms. Manuel was not available to testify in person or be cross-examined in this proceeding. The respondent did file a witness statement on her behalf, and I heard submissions from the parties as to whether, in the circumstances, I should consider the content of Ms. Manuel’s statement. In my view, it is not necessary for me to resolve this issue, as it is not necessary for me to rely upon any material from Ms. Manuel’s statement to determine whether the applicant’s evidence about what Ms. Manuel is alleged to have said amounts to a violation of the Code.
70In the end, the applicant’s evidence is that at the March 17, 2005 meeting, he was informed by his manager of the potential consequences under the collective agreement if he failed to participate in the Article 11 process. I find that there was nothing inappropriate in Ms. Manuel doing so, and hence that there is no basis to support any finding of a violation of the Code arising out of her alleged statement.
c) Allegation re Ms. Maloney’s letter dated April 28, 2005
71While the applicant alleged in his statement of additional facts that there was a threat to cut off his sick time on March 25, 2005, in his evidence at the hearing he was unable to provide any specific evidence to support this allegation. His best evidence is that he was informed of this by his union, but he was unable to provide any evidence as to who is alleged to have made this threat, what precisely this person said or in what context this occurred. Accordingly, I find that there is simply no evidentiary basis to support this allegation.
72Ms. Maloney’s letter of April 28, 2005 already has been discussed above. In this letter, Ms. Maloney required the applicant to provide an authorization and consent for Dr. Morrison to speak to all of the applicant’s medical community by May 2, 2005, in order for him to continue receiving sick leave payments.
73It is important to consider the context in which this letter was written. The applicant on March 16, 2005, had provided work restrictions from his family doctor regarding his need to work within a reasonable commuting distance from his home and his inability to be re-located that were highly unusual, were not readily relatable to the medical condition for which he had been absent from work as known to the employer, and for which no medical support or basis had been provided. At the March 17, 2005 meeting, the respondent had raised the concern about the lack of objective medical evidence to support these work restrictions, and asked the applicant to provide this. On March 24, 2005, the applicant submitted his ranking preference form under Article 11 with a letter from Dr. Prior which largely re-stated the same work restrictions, but again without providing the medical basis or support for these restrictions.
74Accordingly, on April 5, 2005, Ms. Johnson sent an e-mail to the applicant’s union representative re-raising the respondent’s concern about the absence of objective medical support, and asked that the applicant provide an authorization and consent for Dr. Morrison to speak to all of the applicant’s medical community in a timely manner. The evidence indicates that this e-mail was forwarded by the union to the applicant on April 6, 2005. When two weeks had passed and the requested authorization and consent had not been provided, Ms. Maloney followed up with the PWU Chief Steward and asked him to contact the applicant regarding the requested authorization and consent. When more than a week passed from that time and the respondent still had not received any response from the applicant to its request, the April 28, 2005 letter from Ms. Maloney was sent out.
75It is first argued that the request for consent to speak to all of the applicant’s medical community was over-broad and unreasonable. I find it hard to accept that argument when this is ultimately what was ordered by the arbitrator, Mr. Teplitsky, on June 24, 2005, and particularly when the medical information provided in response to Dr. Morrison’s ability to contact all of the applicant’s medical community finally provided the kind of information the respondent had been seeking.
76It also, in my view, is notable that at this time, the applicant continued to remain off work on sick leave at a time when the respondent lacked objective medical support for the work restrictions provided. This information was requested at the March 17, 2005 meeting, but was not forthcoming. As a result, in my view, it was entirely reasonable for the respondent to seek the applicant’s authorization and consent for its Chief Physician to speak with the applicant’s doctors to try to get the medical information that the respondent required. This was requested on April 5, 2005, with no response, and again two weeks later, with still no response. There is no evidence before me to indicate that the respondent raised any potential consequences for the applicant in relation to these first two requests. It was only on the occasion of making yet a third request for this authorization and consent that the respondent set a deadline for this to be provided and spelled out the potential consequences of the applicant’s failure to do so.
77In my view, in these circumstances, it was entirely reasonable for the respondent not only to make the request for authorization and consent for Dr. Morrison to speak to all of the applicant’s medical community, but also to set a deadline and spell out potential consequences. The potential consequences spelled out in Ms. Maloney’s letter, which were that the applicant’s sick leave payments would not continue, were in my view measured and directly related to the circumstances, which were that the applicant’s doctors had recommended highly unusual work restrictions which were not readily relatable to the medical condition for which he had been off work and for which no medical support or basis had been provided. In the absence of receiving the requested medical support for the recommended work restrictions after multiple attempts to obtain this information, in my view it was not unreasonable for the respondent to spell out the potential consequence that the applicant’s sick leave payments would cease if he did not provide the requested authorization and consent by the deadline. I further note that, even though the applicant through his counsel provided only a limited consent and even then after the established deadline, the respondent did not in fact cut off sick leave payments to the applicant pending resolution of his grievance before the arbitrator.
78Accordingly, for all of the foregoing reasons, I see no basis arising out of Ms. Maloney’s letter of April 28, 2005 that would support a finding of a violation of the Code.
d) Allegation re Internal Complaint
79As stated above, on June 5, 2006, while working in his rotation at the Beachville Field Business Centre, the applicant met with his supervisor and requested an investigation under the respondent’s Human Rights Policy. The following day, the applicant was advised by his supervisor that since this issue was the subject of a grievance settlement, it would be more appropriate for the issue to be raised through the union if the applicant felt that the respondent had violated the settlement. The applicant was informed that pursuant to the Human Rights Policy, if an issue is already the subject of a grievance, an employee cannot file a harassment complaint until after the grievance has been settled. It was subsequently clarified with the applicant on June 7, 2005, in response to this request, that this did not preclude him from filing a complaint with the Ontario Human Rights Commission.
80The applicant alleges that the failure to conduct an investigation under the Human Rights Policy amounts to harassment or discrimination against him because of his disability. I disagree.
81The applicant in his evidence at the hearing had difficulty recalling specifically what he said to his supervisor. Ultimately, his evidence was that he said precisely what is recorded in an e-mail dated June 5, 2006 sent by the applicant to his union representative. The applicant’s evidence is that he was reading from a written script at the meeting, and his June 5, 2006 e-mail sets out the entirety of what he said. What he said is recorded as follow:
In accordance with Hydro One’s Workplace Human Rights and Anti-Harassment Policy I am verbally informing my manager that Hydro One’s actions, procedures, practices and policies constitute harassment and discrimination as described in the Hydro One policy and request a full and independent investigation. Hydro One’s policy prohibits discrimination and harassment related to a handicap/disability or perceived disability.
[The applicant’s supervisor] asked if I felt she personally harassed me. To which I responded, “no.”
End of meeting.
82The first thing that is notable about what the applicant said to his supervisor on June 5, 2006, is that he provided no specific event, incident or circumstances in respect of which he was alleging harassment and discrimination. It is an understatement to say that a general statement that “Hydro One’s actions, procedures, practices and policies constitute harassment and discrimination” is extremely broad. It provides no reasonable basis upon which an employer can understand what the employee is complaining about, and is entirely insufficient to trigger an employer’s duty to respond to a complaint of discrimination or harassment under the Code.
83The respondent assumed that the applicant was trying to make a complaint about the issues that were the subject of his grievance and that were before the arbitrator. There is no evidence before me to indicate otherwise. The respondent’s Human Rights Policy expressly provides in Section 4.4(b) that “a complaint will not be referred for investigation, inter alia, where the complaint already is the subject of a grievance or external process”. In my view, there is nothing inappropriate or discriminatory about such a provision in an internal policy, particularly where, as in the instant case, the parties had reached a settlement agreement where the arbitrator expressly remained seized to deal with disputes over the agreement’s terms or implementation.
84Accordingly, I do not find that the respondent’s response under its Human Rights Policy to the applicant’s request for an investigation supports any finding of harassment or discrimination in violation of the Code.
e) Allegation against Mr. Clarke
85The applicant alleges that at the meeting on September 21, 2006, attended by the Ministry of Labour Health & Safety Inspector, Mr. Clarke referred to him as a “backstabber” and that this comment amounts to harassment because of disability.
86Mr. Clarke’s evidence is that he stated that he felt as though he was “stabbed in the back” by the applicant contacting the Ministry of Labour directly about an alleged health and safety issue, rather than following the respondent’s policy that health and safety issues are first to be raised with the employee’s supervisor. In evidence before me is the respondent’s Health and Safety Policy in place at the relevant time for the zone in which the applicant was employed, which clearly states that “the employee must understand that he / she must take their Health and Safety issue to their supervisor” and then proceeds to outline the steps that follow from that. The applicant does not dispute that this was the policy in place at the relevant time, and that he was aware of it.
87I accept Mr. Clarke’s evidence that he said that he felt as though he was “stabbed in the back” over the applicant’s evidence that Mr. Clarke called him a “backstabber”. The applicant was uncertain in his evidence at the hearing as to the precise words used by Mr. Clarke at the meeting. Moreover, in his complaint, the applicant alleges that Mr. Clarke “referred to my request for an investigation as a ‘back stab’”, and then goes on to state that “this inference to me as a back stabber” (emphasis added) is harassment.
88It is not disputed that Mr. Clarke apologized to the applicant shortly after making this comment, although in his evidence on cross-examination he testified that to this day he still feels that what the applicant did was “sneaky”.
89It is argued on the applicant’s behalf that it was his right under the Occupational Health and Safety Act, R.S.O. 1990, c. O.1 (“OHSA”), to contact the Ministry of Labour directly about what he perceived as a health and safety issue. That may be so. But when there is an existing internal policy about such matters that says that an employee is to first go to her or his supervisor, an employee who fails to follow that policy should not be surprised when management is upset over her or his failure to do so. I say this for several reasons. First, I accept Mr. Clarke’s evidence and understand that it can be very intimidating to have a Health and Safety Inspector appear at the workplace. Under OHSA, Health and Safety Inspectors have broad authority to issue orders, and health and safety violations can result in serious penalties not only for the company but for individual managers. As a result, when a Health and Safety Inspector showed up unannounced at the Beachville office on September 21, 2006, without management having any prior knowledge as to what alleged health and safety issue the applicant was raising, I find that such a situation was understandably intimidating and upsetting to Mr. Clarke.
90Second, the respondent’s internal policy provides a process whereby an employee can raise a health and safety issue with her or his supervisor, which in turn triggers timelines for the supervisor to respond under the policy and outlines further steps that the employee can pursue through the Joint Health and Safety Committee (“JHSC”) if she or he is not satisfied with the supervisor’s response. This process enables the supervisor at first instance to understand from the employee what health and safety issue is being raised and affords an opportunity to ask for further information from the employee if required, and then provides the supervisor with a specific time period within which to respond. If the employee is not satisfied with the supervisor’s response, it also enables the JHSC to further consider the matter.
91This process under the policy allows for a health and safety issue to be raised, considered and responded to in a manner that allows for the issue to be fully understood. By bypassing this policy process and going directly to the Ministry of Labour, the applicant deprived the respondent of the ability to understand and respond to his alleged health and safety concern including potentially with the advice and assistance of the JHSC, and instead caught management unaware through the surprise visit by the Health and Safety Inspector.
92In saying this, I do not mean to suggest that the specific form of words used by Mr. Clarke at the September 21, 2006 meeting, that he felt as though he had been “stabbed in the back”, was the most appropriate choice. While being “stabbed in the back” is a commonly-used phrase to indicate that a person has unfairly been taken by surprise, the violent imagery is somewhat over-dramatic for the context. However, the underlying point that Mr. Clarke was making, which was that the applicant had taken management unfairly by surprise by calling the Ministry of Labour about an alleged health and safety issue rather than raising it first with his supervisor, is in my view valid and reasonable.
93Nor do I find that this comment amounts to harassment or discrimination because of the applicant’s disability. The comment was not made because of any disability the applicant had, but because of the applicant’s failure to follow the respondent’s Health and Safety Policy and because he took management by surprise in a way that was intimidating and upsetting to Mr. Clarke.
94As a result, for all of these reasons, I find that the comment made by Mr. Clarke does not give rise to any violation of the Code.
f) Allegations against Mr. Skinner
95There is no dispute that when Mr. Skinner spoke with the applicant on October 23, 2006, he told the applicant that the issue he had raised was a labour relations issue and not a health and safety issue. The applicant alleges that this is harassment because of his disability. Once again, I disagree.
96The issue raised by the applicant on September 21, 2006, was that he was nearing the end of the one-year period of his rotation at the Beachville office, and no permanent position yet had been found for him within his restrictions. The applicant’s one-year rotation was due to end on October 3, 2006, and the settlement agreement did not specify what would happen if a permanent position was not found by that time. I can well appreciate that this lack of certainty was upsetting to the applicant, and may have been adversely affecting his health.
97It is not my jurisdiction to determine whether the issue being raised by the applicant at that time was a legitimate health and safety issue under OHSA. My only jurisdiction is to determine whether the comment by Mr. Skinner that this was a labour relations issue was in violation of the Code. It is hard for me to understand how it could be. The issue being raised by the applicant arose out of the settlement agreement reached in the context of a grievance arbitration proceeding. The grievance arbitrator remained seized to deal with the very type of issue being raised by the applicant. In my view, it was entirely reasonable and understandable for the respondent to regard the issue being raised by the applicant as a labour relations issue that needed to be addressed before the arbitrator in the context of the grievance arbitration process. The expression of the employer’s position in this regard, which is all that Mr. Skinner did, cannot in my view give rise to any violation of the Code.
98Finally, the applicant alleges that Mr. Skinner said that “he wants certain people in certain jobs therefore it is necessary to follow the process”. The allegation by the applicant in the complaint is that this “process” is discriminatory. Mr. Skinner has no recollection of making a statement of this nature, and neither the applicant nor Mr. Skinner could offer any assistance as to what any such statement is supposed to mean, even if it was said.
99If the applicant is alleging that the Article 11 “process” is discriminatory or that the “process” of securing him a permanent job pursuant to the settlement agreement is discriminatory, then in my view these issues were addressed through the arbitration proceeding and cannot be re-litigated here. I am aware from the materials in evidence that at this time, the respondent was going through a process of filling positions at a higher level than the applicant, which in turn would create permanent vacancies at the applicant’s level which could be filled by him (and which is what ultimately happened in January 2007). It may be that this is the “process” that Mr. Skinner was referring to in his discussion with the applicant. But I have no actual evidence of this.
100In my view, given the lack of clarity as to what the alleged statement by Mr. Skinner even means, there simply is no basis to support that this statement is in any way in violation of the Code.
101For all of these reasons, the Application is dismissed.
Dated at Toronto, this 5th day of May, 2011.
Mark Hart
Vice-chair