Garland v. Canusa-CPS, 2012 HRTO 1309

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Dave Garland

Applicant

-and-

Canusa-CPS, a Division of ShawCor Ltd. and United Steelworkers, Local 1-1000

Respondents

DECISION

Adjudicator: David Muir

Date: July 3, 2012

Citation: 2012 HRTO 1309

Indexed as: Garland v. Canusa-CPS

APPEARANCES

Dave Garland, Applicant

Self-represented

United Steelworkers, Local 1-1000, Respondent

Stephanie Hobbs, Counsel

Canusa-CPS, a Division of ShawCor Ltd., Respondent

Karen M. Sargeant, Counsel

Introduction

1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of disability and reprisal.

2The allegations in the Application concern issues which in the applicant’s view are connected. The applicant alleges first that between fall 2008 until January 2010, the employer failed to properly accommodate injuries sustained in an accident. The second allegation is that his termination in January 2011 was a reprisal for his complaints in relation to the accommodation dispute which unfolded between 2008 and January 2010.

3In a Case Assessment Direction (“CAD”) dated February 12, 2012, the Tribunal directed that a summary hearing be held to consider whether the Application should be dismissed. The CAD directed that the applicant make submissions on three issues. The first issue identified by the Tribunal was that it appeared that the allegations of a failure to accommodate the applicant may be untimely. The other issues identified were the lack of any apparent connection between the termination of the applicant’s employment and any protected ground in the Code. As regards the union respondent, it did not appear that there were any allegations which engaged the Code.

4A summary hearing was held on June 7, 2012, by telephone conference call pursuant to Rules 19A.1 and 19A.2 of the Tribunal’s Rules of Procedure which provide as follows:

19A.1 The Tribunal may hold a summary hearing, on its own initiative or at the request of a party, on the question of whether an Application should be dismissed in whole or in part on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.

19A.2 Rules 16 and 17 do not apply to summary hearings. The Tribunal may give directions about steps the parties must take prior to the summary hearing, including disclosure or witness statements.

5Details about the nature of a summary hearing were set out as follows in Dabic v. Windsor Police Service, 2010 HRTO 1994, at paras. 8 and 9:

In some cases, the issue at the summary hearing may be whether, assuming all the allegations in the application to be true, it has a reasonable prospect of success. In these cases, the focus will generally be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation.

In other cases, the focus of the summary hearing may be on whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated. Often, such cases will deal with whether the applicant can show a link between an event and the grounds upon which he or she makes the claim. The issue will be whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him or her can show a link between the event and the alleged prohibited ground.

Employer

6As regards the Application against the respondent employer the two issues identified by the Tribunal in the CAD are related. As indicated above the applicant’s central allegation is that his termination was in whole or in part a reprisal for his having complained about the accommodation issues in the preceding couple of years. The applicant states that the issues are related and constitute a series of incidents – in effect that the decision to dismiss him from his employment was a reprisal for his having made complaints about the accommodation process. The resolution of the issue involves a consideration of whether or not there is no reasonable prospect that the applicant can prove that the respondent employer’s intent in dismissing the applicant was in reprisal for the applicant having asserted his right to be accommodated. See Noble v. York University, 2010 HRTO 878, at para. 31.

No reasonable prospect of success

7It was clear that the applicant believes that his dismissal was unfair. He also believes that it was connected to his prior complaints. He asserted that he had not committed the acts relied upon by the respondent as the cause for his dismissal – theft of company property and sale of drugs to another employee on company property. However, the applicant was unable to point to any facts that would support the conclusion that the respondent intended his dismissal as retaliation for his earlier actions in asserting his right to be accommodated in the workplace. The applicant could not point to any direct evidence supporting an intent on the part of the respondent employer to reprise against him. The evidence the applicant did point to was the fact that a criminal charge related to the theft of company property was later withdrawn by the Crown for reasons that are not disclosed in the material. The applicant also relies on other post-termination circumstances which may raise questions about the two complaints made against him including his claim that an individual involved in the alleged drug sale apologized to the applicant and gave him some indication that he had changed his story about those events.

8Such evidence if proven might support an inference that his dismissal was wrongful or unfair but it is not particularly helpful in determining the issue here because the respondents’ decision is assessed in this context based on what it knew at the time and none of the issues raised by the applicant would have been known to them at the time the decision to terminate his employment was made. Essentially the applicant’s claim is that the allegations made against him were fabricated to justify his dismissal in retaliation for his earlier requests for accommodation. In my view, there is no reasonable prospect, assuming the applicant could prove the facts he alleges, that this would be sufficient to draw the inference that the respondent employer manufactured the circumstances and did so intentionally as a reprisal. Accordingly, I find that there is no reasonable prospect of success that the applicant can establish that his dismissal was a reprisal for his having asserted his right to be accommodated in the workplace.

Delay

9The other allegations in the Application relate to a dispute with respect to the applicant’s need for appropriate accommodation in the workplace. The dispute related primarily to what duties the applicant could safely perform given his restrictions. The dispute was resolved at the latest in January 2010 when the applicant returned to his pre-accident workplace. The applicant was unhappy about a reduction in overtime hours available to him during the course of the dispute and filed a grievance in that respect; however, that matter was resolved, in a manner not entirely satisfactory to the applicant, but which he accepted.

10Section 34 of the Code provides as follows:

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.

11Are these allegations out of time because they are said to have occurred more than one year prior to the filing of the Application? The application was filed on December 28, 2011. Accordingly, any allegation which is said to have occurred prior to December 28, 2010, is out of time unless it is part of a series of incidents including a final incident which is timely.

12As indicated, the applicant alleges that his termination was a reprisal for his complaints about the accommodation process. However, I have concluded that this aspect of the Application has no reasonable prospect of success and it must be dismissed. Accordingly there is no timely allegation to complete the series of incidents. See Chappell v. Securitas Canada Limited, 2012 HRTO 874.

13In any event, I also find that even had the reprisal allegation survived a no reasonable prospect of success analysis, to my mind the allegation of reprisal and a prior failure to accommodate would not constitute a series of incidents within the meaning of section 34 of the Code, which as interpreted by the Tribunal requires that the incidents in the series be connected thematically and in time. I find that an allegation of reprisal is not connected thematically in these circumstances to a dispute about appropriate workplace accommodation. These alleged events also occurred well over a year apart and the Tribunal has held on many occasions that a significant temporal gap between alleged incidents will interrupt the series. The allegations are therefore untimely.

14The Tribunal has the discretion to allow a late Application to proceed where the applicant has established that the delay was incurred in good faith and no substantial prejudice will result to the respondent. The applicant offered no explanation for the delay in filing an Application with respect to the accommodation disputes. It would seem the issue did not resurface for the applicant until his dismissal from employment. As the applicant has not offered any explanation for the delay I find that he has not established good faith. To the extent the applicant did not raise the issue at the time because the termination was what provided the impetus for him, I find that this is not a good faith explanation for the delay. Accordingly, the allegations with respect to the failure of the respondent employer to appropriately accommodate the applicant are dismissed for delay.

The Union

15The Application as it relates to the respondent union is also dismissed. Not only has the applicant not pointed to any evidence which would support a link between any protected ground in the Code and the union’s actions, but there are no allegations in the Application and none articulated at the hearing that make this connection either. The applicant believes that the union did not fight hard enough for him and should have grieved his dismissal. As with the respondent employer above, the union made its decision based on what it knew at the time and the questions raised about the information relied upon by the employer was not provided to the union when it was making its decisions.

16In any event, the question is not whether the union was correct or not, or even whether it acted fairly, but whether a factor in its decision making was that the applicant was a person with a disability. See Traversy v. Mississauga Firefighters Association, 2009 HRTO 996, and Arias v. Centre for Spanish Speaking Peoples, 2009 HRTO 1025. There is no evidence that the applicant can point to that would support such a finding. Accordingly this aspect of the Application must be dismissed as well as having no reasonable prospect of success.

17For all of these reasons the Application is dismissed.