Daniel Parsons v. Simcoe County District School Board and Tracy McPhail, 2012 HRTO 985

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Daniel Parsons Applicant

• and -

Simcoe County District School Board and Tracy McPhail Respondents

INTERIM DECISION

Adjudicator: Brian Cook Date: May 16, 2012 Citation: 2012 HRTO 985 Indexed as: Parsons v. Simcoe County District School Board

APPEARANCES

Daniel Parsons, Applicant (Self-represented) Simcoe County District School Board and Tracy McPhail, Respondents (John-Paul Alexandrowicz, Counsel) Ontario Secondary School Teachers Federation, proposed respondent (Heather Alden)

Introduction

1This Interim Decision is further to a pre-hearing telephone conference call held on April 17, 2012. The conference call was convened further to a Case Assessment Direction dated February 16, 2012.

Background

2The applicant is a high school teacher employed by the respondent Board of Education.

3The Application was filed on July 21, 2010. At that time, the applicant was on a medical leave since March 2010. In the Application he alleged that the respondents had failed to accommodate him to allow him to return to work.

4The respondents filed a Response in which they denied the allegations and provided background information about the events prior to the applicant’s medical leave. These related to issues that arose between the applicant, two co-workers and the personal respondent starting in 2008. The applicant alleged that the co-workers were harassing him. They alleged that the applicant was harassing them. The allegations were investigated and a discipline letter was issued to the applicant. Following this, the applicant went on the medical leave. In the Response, the respondents say that the applicant did not provide them with adequate medical information to allow them to assess his accommodation requests. The respondents further submit that they nevertheless accommodated the applicant appropriately.

5On April 28, 2011, Cynthia Watson, a lawyer, filed a Request for Order During Proceedings with the Tribunal on the applicant’s behalf. She indicated that she had not been retained at the time the Application was filed. The Request for Order During Proceedings asked that the Application be substantially amended to include new allegations regarding harassment, discrimination because of sex, reprisal, and further allegations about the accommodation process. In addition, the Request for Order During Proceedings asked that the Ontario Secondary School Teacher’s Federation (OSSTF) be added as a respondent.

6At approximately the same time that the Request for Order During Proceedings was filed with the Tribunal, the applicant filed two applications with the Ontario Labour Relations Board (OLRB). In the first of these, he alleged that he had experienced harassment in employment contrary to section 50 of the Occupational Health and Safety Act, R.S.O. 1990, c. 0.1 (“the OHSA application”). The second application alleged that the OSSTF had violated its duty to provide fair representation, contrary to section 74 of the Labour Relations Act, 1995, S.O. 1995, c.1, as amended (“the LRA application”).

7The OLRB combined the two applications and they were dealt with in a decision of OLRB Vice-Chair Patrick Kelly, dated January 6, 2012. Both applications were dismissed. In the OHSA application, Vice-Chair Kelly concluded that the applicant had not experienced workplace harassment as that term is defined in the Occupational Health and Safety Act. In the LRA application, he found as follows at paragraph 28:

This leaves the issue of the applicant’s transfer by the employer to another school during the 2010-2011 school year. As I have pointed out, there was nothing in the application itself to suggest that Mr. Parsons sought the union’s assistance to challenge the transfer. Be that as it may, the union contends that it was aware of the employer’s intention to transfer Mr. Parsons and that it considered filing a grievance but ultimately decided not to do so. Mr. Parsons did not contradict that assertion in the course of the consultation. Accordingly, I find that the union turned its mind to the transfer, and reached a conclusion it was entitled to reach, that it was not going to challenge the transfer through the grievance procedure. I am satisfied that the union did not act in an arbitrary or discriminatory fashion, or in bad faith in its representation of Mr. Parsons.

8The applicant filed a request to reconsider the OLRB decision, which was denied.

9In the Case Assessment Direction that I issued on February 16, 2012, I directed that the telephone conference call on April 17, 2012 would address the following issues:

1. The request to add the OSSTF as a respondent.
2. The request to amend the Application by adding new grounds and allegations and revised remedies.
3. The impact of the recent decision of the OLRB in respect of these two issues.
4. Clarification of the issues in dispute, whether or not the Application is amended and the OSSTF is added as a respondent.
5. Identification of proposed witnesses and clarification of document disclosure issues.
6. Identification and discussion of any other preliminary issues

10On April 12, 2012, the applicant sent a letter to the Tribunal to clarify his position and the allegations he wishes to pursue. In the letter, he advised that he is now self-represented. He states he does not wish to amend the Application to add sex as a ground of alleged discrimination and does not now want to allege harassment. He clarified that the issue he is primarily concerned with is an ongoing need for accommodation that he alleges is not being met by the respondents. He also confirmed that he continues to seek to add the OSSTF as a respondent.

The Request to add the OSSTF as a respondent

11The applicant believes that the OSSTF should be added as a respondent because he alleges that the Bargaining Unit President told him that the union would not assist him in the accommodation process. During the conference call, he indicated that the Bargaining Unit President confirmed this in an email sent to the applicant. In addition, the applicant alleges that the OSSTF allowed the school Board respondent to transfer the applicant to a different school even though this was contrary to the advice of the applicant’s doctor, who allegedly said that the applicant should not be transferred. The applicant states that the Collective Agreement provides that the union must agree to any transfer. He alleges that by agreeing to the transfer in his case, the union was a direct party to discrimination and a failure to accommodate.

12The applicant’s request that the OSSTF be added as a respondent is denied. There are two reasons for this. First, section 45.1 of the Code provides as follows:

The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.

13Rule 22 of the Tribunal’s Rules of Procedure provides as follows:

22.1 The Tribunal may dismiss part or all of the Application where it determines, under s. 45.1 of the Code, that another proceeding has appropriately dealt with the substance of part or all of an Application.

22.2 The parties will have the opportunity to make oral submissions before the Tribunal dismisses an Application under Rule 22.1.

14In this case, it is very clear that the decision of the OLRB has appropriately dealt with the substance of the allegations about the OSSTF in relation to the alleged failure to assist him in the accommodation process and in regard to its involvement in the allegedly discriminatory school transfer. Paragraph 28 of the Decision of the OLRB, quoted above, squarely addressed the school transfer issue and found that the union did not act in a discriminatory fashion. Accordingly, even if the OSSTF were added as a party, the applicant’s claims against it could not proceed because of section 45.1.

15The second reason for not adding the OSSTF as respondent is that the applicant’s allegations against the OSSTF are essentially that the union failed to take forward the human rights issues that he brought to their attention and that he has continued to advance.

16As discussed during the conference call, the Tribunal has consistently found that an alleged failure by a union to advance a human rights issue is not, in itself, evidence of discrimination on the part of the union. In Traversy v. Mississauga Professional Firefighters Association, 2009 HRTO 996, at paragraph 33, the Tribunal stated:

[A] claim that the union violates the Code must be based on an assertion of differential treatment, and not simply a failure to act. The failure or refusal to take forward a human rights issue such as accommodation of a disability in the workplace is not, in and of itself, a breach of the Code. There must be a claim, and a factual foundation for the claim, that the failure to act was based on discriminatory factors.

17This Tribunal only has jurisdiction in such a matter if there is an allegation that the union failed to act because of a discriminatory reason. The allegation can only be successful if the applicant can provide evidence to support the allegation that the failure to act was because of discriminatory reasons and not only because the union failed to challenge the employer’s alleged discriminatory action or decision.

18An important reason that a failure by a union to take forward an alleged failure to accommodate a disability is not itself evidence of discrimination by the union is that the duty to accommodate rests with the employer. While a union may not obstruct accommodation and must co-operate in the accommodation process, it is the employer and not the union that is responsible for offering accommodation.

The impact of the OLRB decision on the remaining issues

19Because the applicant has withdrawn his request to amend the Application by adding new grounds of discrimination, the parties agree that the decision of the OLRB does not impact the remaining issues in the Application.

Clarification of the issues

20The applicant alleges that there is an ongoing failure to accommodate on the part of the school board. He says that this failure started in 2010, continued in 2011 and is still ongoing in 2012. He wishes to have the ongoing alleged failure to accommodate addressed by the Tribunal as part of this Application.

21On behalf of the respondents, Mr. Alexandrowicz notes that the Application was filed in July 2010. He indicated that the respondents are prepared to respond to the allegations made out at that time but that any allegations about events after July 2010 should be the subject of a new Application. In the alternative, Mr. Alexandrowicz submitted that if the Tribunal were to allow the applicant to amend the Application to include allegations of a failure to accommodate subsequent to July 2010, the applicant should be directed to provide particulars so that the respondent can properly respond.

22When considering a request to amend an Application, the Tribunal generally looks at the nature of the proposed amendments, the stage of the proceedings and the potential for prejudice to the respondent. In this case, there is an ongoing employment relationship between the parties and ongoing issues about the accommodation process. The Application is in the early stages and it does appear that the respondents can be substantially prejudiced by adding the allegations about the ongoing events as they obviously know about them. In these circumstances, it is appropriate to amend the Application to include the ongoing issues about the accommodation process to date.

23I do however, agree with Mr. Alexandrowicz that the applicant should provide particulars about what exactly he is alleging occurred subsequent to July 2010, when the Application was filed. At the conference call, the applicant also agreed that this would be reasonable.

24Within three weeks of the date of this Interim Decision, the applicant shall file with the Tribunal and the respondents, a detailed account of what has occurred since July 2010 and why those events or decisions are discriminatory.

25The respondents may provide a response to that account within three weeks of their receipt of the applicant’s account.

The hearing process

26The parties agreed that it is premature to discuss what witnesses would be called at this time. The applicant identified three potential witnesses, including one of the School Board’s superintendents. Mr. Alexandrowicz indicated that he would likely object to the applicant calling this witness as the proposed evidence may relate to a taped conversation.

27In his letter of April 12, 2012, the applicant indicated that he is concerned that the hearing at the Tribunal will be stressful and that he will be at a disadvantage as a result. He did not make any specific request arising out of this concern but indicated that he would like the Tribunal to suggest something. At the conference call the applicant suggested that perhaps the hearing could be held by telephone. Mr. Alexandrowicz advised that the respondents would strongly oppose such a request and would insist on their right to cross examine the applicant in person. He did however indicate that the respondents would not oppose reasonable requests for breaks during the hearing.

28Based on the information provided by the applicant, I do not think that allowing him to participate by telephone is warranted and nor would it result in a fair, just and expeditious process.

29In regard to the conduct of the hearing, the Tribunal will initially schedule two days of hearing. On the first day of hearing, I will propose that I will question the applicant to bring out the relevant history. When I have asked my questions and the applicant has provided any additional testimony about the events, Mr. Alexandrowicz will question the applicant. I anticipate that this will take at least one day. No other witnesses need to be present on the first day of the hearing.

30Subject to submissions the parties may make to the contrary, I anticipate that after hearing the applicant’s evidence, it will be appropriate to hear evidence from the respondents, and a witness should be available who can generally respond to the applicant’s testimony. This will occur without prejudice to the right of both parties to call additional witnesses. The parties and I will then discuss what further evidence is required and how and when that evidence will be heard.

Order

31The request to add the OSSTF as a respondent is denied.

32Within three weeks of the date of this Interim Decision, the applicant will provide a detailed account of what has occurred since July 2010 and why those events or decisions are discriminatory. The respondents may respond within three weeks of their receipt of the applicant’s account.

33The Tribunal will schedule a two-day hearing. Scheduling may proceed without waiting for the applicant’s account and the response.