Human Rights Tribunal of Ontario
Between:
Randolph Power Applicant
-and-
Toronto Transit Commission Respondent
-and-
Canadian Union of Public Employees Intervenor
Decision
Adjudicator: David Muir Date: May 22, 2012 Citation: 2012 HRTO 1020 Indexed as: Power v. Toronto Transit Commission
Appearances
Randolph Power, Applicant ) Self-represented Toronto Transit Commission, Respondent ) Lucy Siraco, Counsel Canadian Union of Public Employees, ) Ryan Goldvine, Counsel Intervenor )
Decision
1This is an Application filed pursuant to section 34 of Part IV of the Ontario Human Rights Code, R.S.O. 1990 c. H-19, as amended (the “Code”). The applicant alleges that his right to be free of discrimination in employment on the basis of a disability was infringed by the respondent.
2In a Case Assessment Direction (CAD) dated February 18, 2012 the Tribunal directed that a half day hearing be held to hear the parties’ submissions on a number of issues, including whether or not the Application should be dismissed because it has no reasonable prospect of success. An oral hearing was held on Monday May 7, 2012 by telephone conference call.
Background
3The applicant has been employed by the respondent Toronto Transit Commissoin (TTC) since 1986 in a unit which at the material times was designated the Special Constable Services Department. The applicant was at the material times a Special Constable providing security services within the TTC’s transit system. The applicant was injured in a workplace accident in 2005. He was off work for some period of time. As a consequence of his injuries the applicant has permanent physical impairments which limit his functional capacity and his ability to perform the essential tasks of his pre-injury position. The applicant has been accommodated by the respondent since his return to work in 2008.
4It is not disputed that, as a consequence of his injuries and physical restrictions the applicant is unable to perform the essential tasks of his pre-injury position. The respondent has created a new position for the applicant – largely sedentary work with some transit sitet inspection. It is not disputed that the overtime opportunities that are available would require the applicant to perform the full duties of the applicant’s pre-injury position. The dispute relates to the applicant’s inability to take advantage of overtime opportunities that were available to him prior to the workplace accident. To be clear the applicant is prevented from taking advantage of overtime opportunities because he is unable to perform the work associated with the overtime work. For the purposes of this Decision it is not disputed that this has had an effect on the applicant’s income since his return to work and will likely continue to do so in the future.
Decision
5The Application was dismissed at the hearing as having no reasonable prospect of success. I indicated to the parties that I would set out my reasons in more detail in writing. Before hearing the parties’ submissions on the no reasonable prospect of success issue the parties spoke to two other preliminary matters.
CUPE’s Request to Intervene
6The Canadian Union of Public Employee’s (“CUPE”) requested intervenor status (by way of a Form 5 filed several weeks prior to the hearing. CUPE represents the applicant and his colleagues in the workplace. The Tribunal has normally granted a trade union with bargaining rights for an applicant intervenor status when it is requested. Neither the applicant or the respondent opposed the Request. In the absence of any opposition from the other parties and in light of the factors normally considered by the Tribunal when a trade union representing potentially affected employee is seeking to intervene, I granted the Request and the style of cause is amended accordingly.
Applicant’s Request to Amend
7The applicant sought to amend the Application to add age as an additional ground of discrimination . The applicant seeks the amendment because, in his view, the workplace injury in 2005 was as a result of a discriminatory denial of a position about a year prior to the workplace accident. In the applicant’s view, but for that act of discrimination in 2004/2005 he would not have been in the platoon he was when the workplace accident occurred. In the applicant’s view all that has happened since, including the effects on his income that are at the heart of this Application, flow from that discriminatory decision in 2004/2005.
8I refused the applicant’s Request to amend at the hearing. In my view the Request was untimely being made almost a year after the Application was filed and more than 6 years after the alleged events.
9As I indicated at the hearing, the allegation would have been untimely had it been included in the Application as it was unconnected in time or in substance with the issue articulated in the Application. As such perhaps the most straightforward manner of dealing with this Request to amend the application is to analysis it under section 34(1) and (2) of the Code. I do not suggest that this has been the applicant’s intent but in my view an untimely allegation can not be made timely merely by later adding it to an existing application in the form of a Request to Amend.
10Sections 34(1) and (2) of the Code provide:
34(1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,
(a) within one year after the incident to which the application relates; or
(b) if there was a series of incidents, within one year after the last incident in the series.
(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.
11The new allegation the applicant seeks to add to the Application is said to have occurred in 2004 six or more years prior to the Application being filed