Charles Devlin v. International Brotherhood of Electrical Workers, Local 303 et al., 2012 HRTO 2387

Human Rights Tribunal of Ontario

Between:

Charles Devlin Applicant

-and-

International Brotherhood of Electrical Workers, Local 303, Peter Wall, Black & Mcdonald Limited, Net Electric Inc., Plan Group Inc. and The Roberts Group Inc. Respondents

Interim Decision

Adjudicator: Jo-Anne Pickel Date: December 20, 2012 Citation: 2012 HRTO 2387 Indexed as: Devlin v. International Brotherhood of Electrical Workers, Local 303

Appearances

Charles Devlin, Applicant Christopher J. Bittle, Counsel

International Brotherhood of Electrical Workers, Local 303 and Peter Wall, Respondents Ron Lebi, Counsel

Black & MacDonald Limited, Net Electric Inc., Plan Group Inc. and The Roberts Group Inc., Respondents Scott G. Thompson, Counsel

Introduction

1The applicant alleged that Local 303 of the International Brotherhood of Electrical Workers (“union”) and its business manager Peter Wall discriminated against him by denying him work opportunities due to his disability or perceived disability. He alleged that the respondents Black & McDonald Limited, Net Electric Inc. and The Roberts Group Inc. discriminated against him by refusing to hire him due to his disability or perceived disability. In addition, he alleged that the respondent Plan Group Inc. failed to accommodate his disability up to the point of undue hardship when it terminated his employment.

2By Case Assessment Direction dated September 16, 2012, the Tribunal directed that the matter be scheduled for a summary hearing pursuant to Rule 19A of the Tribunal’s Rules of Procedure. The parties were directed to address three issues in the summary hearing: (1) whether all or part of the Application should be dismissed as being out of time, (2) whether any timely allegations had a reasonable prospect of success, and (3) whether Mr. Wall should be removed as a personal respondent.

3At the beginning of the summary hearing the applicant’s counsel conceded that all allegations in the Application against Black & MacDonald, Net Electric and The Roberts Group were untimely. He also conceded that any allegations against Plan Group prior to December 16, 2010 were also untimely. Finally, he conceded that Mr. Wall should be removed as a personal respondent.

4Due to these concessions, the only remaining issues to be dealt with are: (1) whether the allegations against the union are untimely and (2) whether the remaining allegations against Plan Group stand a reasonable prospect of success.

Factual Background

5The applicant is a certified electrician who suffered an injury to his right knee sometime before 2010. He is a member of the respondent union. By Application dated December 16, 2011, he alleged that the union discriminated against him by denying him work opportunities during 2010. Like other construction unions, the union operates a hiring hall through which its members are provided the opportunity to bid on jobs as they become available. This process is conducted in accordance with a set of “working rules” published by the union.

6In or around December 2009, the union requested an opinion from its legal counsel as to its obligations and potential liabilities when distributing work to members with disabilities. The union’s legal counsel provided an opinion on the duty to accommodate and the responsibilities of parties in the accommodation process. In accordance with the legal opinion, Mr. Wall asked the applicant to draft a letter that would disclose his disability and any accommodations he required. The union advised that the letter would be provided to prospective employers in order to seek accommodations if and when the applicant bid on jobs. Although the applicant initially resisted, he ultimately complied with the union’s request.

7In or around November 2010, the applicant obtained independent legal advice with respect to the union’s provision of the letter to prospective employers. He obtained a written legal opinion dated November 12, 2010 stating that he had a “strong case” for a complaint against the union under the Labour Relations Act, 1995, S.O. 1995, c. 1, Sched. A, as amended, and the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

8The union agreed on December 1, 2010 that it would no longer send a copy of the applicant’s letter to prospective employers from that date forward. The last time the union provided the letter to a prospective employer was November 19, 2010.

9Although the applicant discussed his work situation with the union following November 19, 2010, he did not bid on any jobs until December 8, 2010. On that date he successfully bid on a job with Plan Group. Although he initially performed general electrician duties, Plan Group later assigned him to a light duty job that would not aggravate his right knee.

10On or about January 10, 2011, the applicant experienced an injury to his left knee. The applicant began receiving benefits from the Workplace Safety and Insurance Board. A series of Functional Abilities Forms were completed through the WISB from January to April 2011. All parties agree that Plan Group initially accommodated the applicant’s disability by assigning him modified duties in accordance with his functional abilities.

11In September 2011, Plan Group terminated the applicant’s employment on the basis that it could no longer provide him with any meaningful work that fell within his work restrictions.

Analysis

Timeliness of Allegations Against the Union

12Section 34 of the Code provides that a person may file an application alleging that his or her rights under the Code have been infringed within one year of the incident (or last incident) to which the application relates. Under section 34(2) of the Code, a person may apply to the Tribunal more than one year after the incident to which his or her application relates (or the last incident in a series of incidents) only if the Tribunal is satisfied that the delay in filing the application was incurred in good faith and that no substantial prejudice would result to any person affected by the delay if the application were to proceed:

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.

13All parties recognized that the Tribunal has set a fairly high onus on applicants to provide a reasonable explanation for any delay beyond the one year period set out in s. 34(1) of the Code. See, for example, Klein v. Toronto Zionist Council, 2009 HRTO 241.

14The mandatory one-year limitation period for filing an application is consistent with the policy objective, expressed elsewhere in the Code, that human rights claims should be dealt with expeditiously. As stated in Miller v Prudential Real Estate, 2009 HRTO 1241, in order for an applicant to establish that a delay in filing an application was incurred in good faith, the applicant must show something more than simply an absence of bad faith; otherwise, there would be little meaning to the statutory limitation period.

15The applicant’s counsel submitted that the delay in filing the Application against the union was incurred in good faith since the applicant had relied upon the dates set out in a document provided by the union when instructing counsel to file his Application. The document in question is a short table prepared by the union listing the dates on which the applicant was supposedly employed by different employers. The document mistakenly listed December 18, 2010 (rather than December 8, 2010) as the date the applicant was employed by Plan Group. The applicant’s counsel submitted that the Application would have been timely if the union’s document had been accurate – that is, if the applicant’s employment with Plan Group had indeed started on December 18, 2011. According to the applicant’s counsel, the union’s alleged discrimination continued up to the date he was employed by Plan Group since, in his view, the applicant was denied employment opportunities until that date.

16In response, the union submitted that the applicant had failed to satisfy the requirement of good faith found in s. 34(2) of the Code. The union’s counsel noted that the applicant was aware of his rights since he had obtained a legal opinion in November 2010 with respect to a possible human rights claim. As well, the union submitted the applicant should have realized that the document provided by the union had some flaws since it listed his date of employment with one employer as being in 1999 when in fact he only became a union member in 2004.

17Finally, the union submitted that the Application would have been untimely whether the applicant became employed by Plan Group on December 18, 2010 or December 8, 2010. According to the union, any alleged discrimination ceased either on November 19, 2010 (the last date on which the union submitted the applicant’s letter to prospective employers) or December 1, 2010 at the latest (the date on which the union agreed not to submit the letter to prospective employers in future.) The union denies that it refused the applicant any work opportunities between November 19, 2010 and the date he was employed by Plan Group. In particular, the union argued that it does not have the duty to provide work to members. Instead, the union is only responsible for distributing work to members if and when they bid on jobs. The union noted that the applicant did not bid on a job between November 19, 2010 and the date on which he became employed by Plan Group.

18After having considered the parties’ submissions, I find that the Application against the union must be dismissed as untimely. Assuming without deciding that it was reasonable for the applicant to rely upon the dates set out in the document provided by the union, I find that the Application would have been out of time even if these dates had been accurate. It was not disputed that the last time the union provided the applicant’s letter to any potential employer was November 19, 2010 and that it agreed to stop submitting the letter to prospective employers as of December 1, 2010. Although the applicant claims that the union continued to deny him work opportunities until he became employed by Plan Group, it was not disputed that the applicant did not bid on any jobs between November 19, 2010 and the date on which he was employed by Plan Group. Therefore, there is no reasonable basis on which the applicant can claim that the union discriminated against him by denying him any work opportunities after November 19, 2010 or December 1, 2010 at the very latest. Accordingly, even if the union’s document had been accurate, the Application filed on December 16, 2010 would have been untimely. The applicant provided no good faith reason for this period of delay except his conclusion that the union’s alleged discrimination continued up to the date of his employment with Plan Group. However, for the reasons set out above, this conclusion cannot be accepted. Any alleged discrimination would have ceased on December 1, 2010 at the latest.

19In light of the above, the Application against the union is dismissed as untimely.

Reasonable Prospect of Success of Allegations Against Plan Group

20Pursuant to Rule 19A of the Tribunal’s Rules of Procedure, the Tribunal may dismiss an application if there is reasonable prospect that the application or part of the application will succeed.

21In Dabic v. Windsor Police Service, 2010 HRTO 1994, at paras. 8-10, the Tribunal made the following observations on the type of inquiry that may be involved in a summary hearing:

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.

In considering what evidence is reasonably available to the applicant, the Tribunal must be attentive to the fact that in some cases of alleged discrimination, information about the reasons for the actions taken by a respondent are within the sole knowledge of the respondent. Evidence about the reasons for actions taken by a respondent may sometimes come through the disclosure process and through cross-examination of the people involved. The Tribunal must consider whether there is a reasonable prospect that such evidence may lead to a finding of discrimination. However, when there is no reasonable prospect that any such evidence could allow the applicant to prove his or her case on a balance of probabilities, the application must be dismissed following the summary hearing.

22The applicant bore the onus of showing that his allegations against Plan Group stood a reasonable prospect of success. The applicant alleged that Plan Group failed to accommodate his disability up to the point of undue hardship when it terminated his employment. At the summary hearing, the applicant’s counsel stated that approximately 250 electricians worked at the job site where the applicant was employed by Plan Group. The applicant’s counsel claimed that Plan Group had numerous jobs that met the applicant’s restrictions. He also argued that there was no reason why Plan Group could not have continued the accommodations it had put in place for the applicant prior to his termination.

23Counsel for Plan Group submitted that the applicant’s claims against his client stood no reasonable prospect of success. He argued that there was no factual linkage or nexus between the applicant’s disability and Plan Group’s actions in this case. He stated that Plan Group had provided the applicant with modified duties which were appropriate for his increasingly restrictive limitations and that it accommodated the applicant until no modified work was available. According to counsel for Plan Group, no reliance should be placed on the applicant’s claim that 250 electricians were employed at the job site since, he argued, that Functional Abilities Forms showed that the applicant was not capable of performing the essential duties of an electrician. Counsel for Plan Group submitted that his client had accommodated the applicant up to the point of undue hardship. As a result, he argued that the applicant’s claims of discrimination amounted to nothing more than speculation and bald allegations. Finally, counsel for Plan Group submitted that since the applicant did not file a Reply contradicting any facts contained in Plan Group’s Response, he must be found to have accepted those facts pursuant to Rule 9.1 of the Tribunal’s Rules of Procedure.

24After having considered the parties’ submissions, I am not prepared to find at this stage that there is no reasonable prospect that the Application against Plan Group will succeed. I find that the applicant has established a nexus between his disability and Plan’s Group alleged conduct in this case. Unlike many other summary hearing cases, this is not one where there is no nexus or factual linkage between the alleged ground of discrimination and the respondent’s conduct. It was not disputed that the applicant had a disability that required accommodation, and in fact that Plan Group had accommodated him for a period of time. On this basis, I find the applicant has made out the requisite nexus between his disability and Plan Group’s actions.

25The issue in this case is whether Plan Group fulfilled its duty to accommodate the applicant up to the point of undue hardship. Although the ultimate burden of establishing a violation of the Code rests with the applicant, the respondent bears the evidentiary burden of showing that it accommodated the applicant to the point of undue hardship.

26The applicant claims that Plan Group did not accommodate him up to the point of undue hardship since there allegedly existed modified work that fit his restrictions. Meanwhile, Plan Group claims that it was unable to continue accommodating the applicant without experiencing undue hardship. During the summary hearing, both Plan Group and the applicant made claims about the evidence that would support their respective positions. In my view, the Tribunal cannot make a determination on whether Plan Group satisfied its duty to accommodate in this case in the context of this summary hearing with limited evidence. I find that, in the circumstances of this case, the Tribunal requires a full evidentiary record in order to properly determine whether Plan Group has fulfilled its duty to accommodate the applicant up to the point of undue hardship.

27For these reasons, I decline to dismiss the Application against Plan Group as having no reasonable prospect of success.

Order

28In light of the above, the Application is dismissed except for the applicant’s allegation that Plan Group failed to accommodate his disability up to the point of undue hardship. The Registrar shall schedule a two-day hearing to consider this issue.

29I am not seized of this matter.