Matthews v. Chrysler Canada Inc., 2013 HRTO 225

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Phillip Matthews Applicant

-and-

Chrysler Canada Inc. and National Automobile Aerospace and Agricultural Implement Workers Union of Canada (CAW-Canada) Respondents

DECISION

Adjudicator: Maureen Doyle Date: February 8, 2013 Citation: 2013 HRTO 225 Indexed as: Matthews v. Chrysler Canada Inc.

APPEARANCES

Philip Matthews, Applicant Self-represented

Chrysler Canada Inc., Respondent Clifford Hart, Counsel

National Automobile Aerospace and Agricultural Implement Workers and General Workers Union of Canada (CAW-Canada), Respondent Farah Baloo, 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 and in membership in a vocational association because of disability.

2The applicant essentially alleges that the respondent employer Chrysler Canada Inc. (“CCI”) failed to accommodate his disability beginning in October 2010 and on a continuing basis thereafter, that his union contributed to this failure to accommodate and that his union separately discriminated against him on the basis of disability in a union job competition in August 2011. Some of these allegations, in particular the allegations of a failure to accommodate in October of 2010, were before the Tribunal in an earlier application brought by the applicant in 2010-07152-I.

3The respondents requested that the Application be dealt with by way of Summary Hearing and submitted that it should be dismissed as having no reasonable prospect of success.

4The Tribunal issued a Case Assessment Direction (CAD) on July 4, 2012. It granted the respondents’ Request for a Summary Hearing. The Tribunal directed that at the Summary Hearing, the applicant would be required to make argument about why the Application should not be dismissed as having no reasonable prospect of success and should point to evidence upon which he would rely to prove a link between the respondents’ actions and the grounds cited.

5The Tribunal also directed that the parties be prepared to address the respondents’ further argument that allegations made in this Application overlap with allegations in an earlier Application filed by this applicant, and which were disposed of by the Tribunal in a previous decision.

6Accordingly the Tribunal directed that the following issues would be dealt with at the Summary Hearing:

(i) Whether the 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;

(ii) Whether the Application should be dismissed, in whole or in part, based on the doctrine of res judicata, estoppel and/or abuse of process; and

(iii) Whether the Application should be dismissed, in whole or in part, because another proceeding has appropriately dealt with the substance of the Application.

DECISION

7For the reasons that follow, the Application is dismissed.

ANALYSIS

Summary Hearings

8In a summary hearing, the issue is whether the Application should be dismissed, in whole or in part, on the basis that there is no reasonable prospect that the Application or a part thereof will succeed. It is outlined in Rule 19A of the Tribunal’s Rules of Procedure:

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.

9In Dabic v. Windsor Police Service, 2010 HRTO 1994, at paras. 8 and 9, 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.

Application to the Facts

10The applicant indicates that he had a myocardial infarction on September 29, 2010 and this is not disputed.

11The applicant previously made an Application to the Tribunal, alleging, among other things, that the respondent employer CCI failed to accommodate him in October 2010, following his myocardial infarction. That allegation was dismissed in the Tribunal’s decision in Matthews v. Chrysler Canada Inc. 2011 HRTO 1939 and, for reasons provided below, is dismissed in this decision both on the basis of s.45.1 of the Code and because it would be an abuse of process to relitigate this matter. The applicant also makes various new allegations relating to subsequent or ongoing failure to accommodate by both his employer and his union, all of which are dismissed for the reasons below.

12In this Application, the applicant alleges that he has provided medical documentation which indicates “detailed and extensive restrictions” in order to obtain accommodated work, but that he has been refused “even consideration of ‘accommodation to the point of undue hardship’”. He alleges that the respondents have discriminated against him on the basis of disability.

13The applicant alleges that he provided medical documentation regarding his restrictions to CCI on October 14, 2010 and that when he attended work on October 19, 2010, an official of the respondent union (the “union”) “assigned” him to work in a position which exceeded his restrictions. He alleges in his Application that the union assigns workers to their jobs, by contractual agreement and without consideration of the duty to accommodate.

14He alleges that when he attempted to return to work on October 20, 2010, he was advised that the previously assigned job was no longer available and his supervisor sent him home. He also alleged that the “Medical Placement Representative” refused to return him to the work he had been performing prior to his heart attack and that this work would have accommodated his restrictions. He indicates that he has “attended for review by the plant Medical Center on a number of occasions”, but is advised that he will not be returned to work without “considerable accommodation”. He states that he has “more than the identified number of restrictions [whatever that means] ” and is “considered unable to work”. He indicates that he is receiving “Extended Disability Benefits [long-term disability] ” which pays him less than his “normal weekly income”. He indicates that he will likely receive those benefits until he turns 65. He alleges that “By contractual agreement ‘plant jobs’ are assigned by union representation based on ‘seniority’ without regard to the ‘duty to accommodate’”. [Notations in square parentheses and emphasis all in original].

15He also alleges that “[a]ppointed jobs, again by contractual agreement, are assigned by the union on whatever criteria they establish, again without consideration of the duty to accommodate”. He relates this latter type of job to documentation he has provided regarding his application for a position working for the union in or around August 2011. He alleges that “[t]he employer abdicates its responsibilities based on the contractual agreements”. He states that he has not returned to work since October 20, 2010.

16The applicant alleges that as a consequence of the failure to provide him with accommodated work, he has experienced loss of income, loss of seniority, impact on his pension, loss of CPP and EI credits and his self-esteem and dignity have also been affected. He also alleges that as a consequence, he has also suffered “mental health issues”.

17The applicant included the following medical documentation with his Application:

• October 13, 2010 doctor’s letter stating he could return to work October 18, 2010 to a “sedentary job” with “minimal standing, no strenuous activity, no lifting and very little walking and no use of his left arm for two months”, indicating the applicant would then require “two months of work hardening when he returns to work without restrictions”.
• November 10, 2010 Attending Physician’s Statement for Disability Benefits stating the applicant had been admitted to hospital and was being assessed with respect to Post Traumatic Stress Disorder, indicating discharge from hospital expected January 5, 2010 and stating that any return to work after that would be “per family doctor’s recommendation”.
• January 5, 2011 psychiatrist report from Homewood Health Care Centre where he had been admitted, indicating several psychiatric and other diagnoses, including heart disease and his September 2010 “cardiac event”. The report recommends further hospital admission for one of the psychiatric diagnosis, though states that at least three months should transpire between admissions. It also states he had not been assessed for return to work and that “[a]t this time, a definitive return to work cannot be provided”. It suggested that the applicant discuss return to work with his family doctor “once Mr. Matthews has returned to outpatient status and his functioning outside of a hospital setting can be appropriately determined”.
• January 6, 2011 Attending Physician’s Statement for Disability Benefits from the applicant’s family doctor. The doctor indicated the applicant could return to modified duties from January 10, 2011 to March 6, 2011 and stated “no use Left arm, sedentary job, sitting job, no walking, no standing, no repetitive motion, no stress”. In the same report, however, the doctor also indicates the applicant was “Totally Disabled (Unable to Work) from January 10, 2011 to March 6, 2011.
• April 4, 2011 report from the applicant’s family doctor, indicating his “condition is likely to be permanent (serious and severe) and will prevent him from working at any occupation”. It indicated the applicant had a poor prognosis, and his condition was worsening with continuing “serious physical and mental health problems”. It indicated the applicant was awaiting a further admission to hospital for his psychiatric illness and provided several functional restrictions.
• A portion of a July 27, 2011 discharge report from the Homewood Health Care Centre where he had been cared for with respect to his psychiatric illness. It provides diagnoses and states that the applicant is “unable to work due to medical illness”.
• April 14, 2011 Request for Assessment Form relating to a visit by the applicant to the doctor at the medical centre at the respondent employer, indicating “not physically fit”, with a notation “190 until July 31, 2011. The form provides space for a date for return to work, but this has been left blank.
• September 7, 2011 Request for Assessment Form relating to a visit by the applicant to the doctor at the medical centre at the respondent employer, indicating “not physically fit” with a notation “190 x 3 months”. The form provides space for a date for return to work, but this has been left blank.

18The applicant also included documentation relating to his application for a position working for the union. In particular, he included his August 3, 2011 covering letter of application for the position of “WSIB Representative”, his resumé and a note indicating that his application had been received. In his covering letter of application to the union, he stated, among other things, that he was forwarding the letter and his resumé but that “considering your earlier approach and in anticipation of the rejection of this application”, he was also forwarding a copy to the attention of counsel for the union and to the attention of counsel for the respondent employer. He stated that the job would “[o]bviously…provide the requisite and necessary accommodation of my ‘permanent disabilities’”, but that “[s]ince I no more expect you, or the national representation, to comply with the law on this occasion than you have on earlier occasions (as no one has bothered to proceed with any form of ‘needs review’)”, he requested that the union maintain a copy of the competition file “for eventual review at the HRTO under file 2010-07252-I” [emphases in original]. He indicated that if the file was “‘unavailable’ for any reason, I will ask that the Tribunal draw the requisite negative inference” [emphases in original]. I note here that Tribunal File Number 2010-07152-I relates to the Application which resulted in the above-noted decision Matthews 2011 HRTO 1939.

Summary Hearing

Accommodation of the Applicant at the Summary Hearing

19On October 2, 2012, the applicant wrote to the Tribunal and included a letter from his doctor, copying the respondents and indicating that for the teleconference he required hourly washroom breaks and limitation in the length of hearings “based on functionality”.

20The summary hearing by teleconference convened at the scheduled time and all parties were in attendance. The applicant was afforded the accommodation requested during the course of the summary hearing.

The Code

21The following provisions in the Code address discrimination in employment and in membership in an vocational association and accommodation of a disability:

Employment

5. (1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability. R.S.O. 1990, c. H.19, s. 5 (1); 1999, c. 6, s. 28 (5); 2001, c. 32, s. 27 (1); 2005, c. 5, s. 32 (5); 2012, c. 7, s. 4 (1).

Vocational associations

6. Every person has a right to equal treatment with respect to membership in any trade union, trade or occupational association or self-governing profession without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status or disability. R.S.O. 1990, c. H.19, s. 6; 1999, c. 6, s. 28 (7); 2001, c. 32, s. 27 (1); 2005, c. 5, s. 32 (7); 2012, c. 7, s. 5.

Disability

17. (1) A right of a person under this Act is not infringed for the reason only that the person is incapable of performing or fulfilling the essential duties or requirements attending the exercise of the right because of disability. R.S.O. 1990, c. H.19, s. 17 (1); 2001, c. 32, s. 27 (5).

Accommodation

(2) No tribunal or court shall find a person incapable unless it is satisfied that the needs of the person cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any. R.S.O. 1990, c. H.19, s. 17 (2); 1994, c. 27, s. 65 (2); 2002, c. 18, Sched. C, s. 3 (1); 2006, c. 30, s. 2 (1).

Determining if undue hardship

(3) In determining for the purposes of subsection (2) whether there would be undue hardship, a tribunal or court shall consider any standards prescribed by the regulations. 2006, c. 30, s. 2 (2).

22The Case Assessment Direction also made reference to section 45.1 of the Code, which states:

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.

The Parties’ Submissions

23The applicant provided a letter and written submissions and case law in advance of the Summary Hearing. He submitted that the Application was filed October 17, 2011 and asserted that it relates to the one year period prior to that date only. He submitted that any “comments related to any other ‘time periods’, issues, and/or occurrences outside this applicable time period are improper, irrelevant, and immaterial. He stated that “subsequent time periods” would be addressed in “subsequent applications”.

24At the Summary Hearing, the applicant submitted that the Application which resulted in the interim decision, Matthews 2011 HRTO 1939 was withdrawn by him on February 28, 2012, and that therefore the Tribunal has no jurisdiction to consider that interim decision. He submitted that it was an interim decision and simply indicated that he did not have sufficient evidence at that time to convince the Tribunal of his allegations. He submitted that once he withdrew the Application, it “disappears” and the “whole thing dies”. He also submitted that the Application which resulted in the Tribunal’s decision, Matthews 2011 HRTO 2053, was filed under the transitional provisions of the Code and therefore the Tribunal has no jurisdiction to consider that decision.

25He submitted that the facts he seeks to put before the Tribunal, have never been before the Tribunal. He submitted that despite the Tribunal’s interim decision in Matthews 2011 HRTO 1939, the impact of his heart attack continues and that the January 6, 2011 medical documentation he submitted provided a list of restrictions under which he was employable. He submitted that in seeking accommodated work, he had provided all of the medical documentation he included in his Application. He submitted that he had discussed his needs on three occasions with Dr. Armstrong, the doctor at the employer’s medical centre, but that each time he refused to do an assessment of the applicant. He could not recall all of the specific dates, but submitted that the first time was October 20, 2010, and that the other two times were within the year following that date. He submitted that Dr. Armstrong’s interpretation of the medical information he provided was inaccurate, as he maintains that though Dr. Armstrong indicated he was not fit for a return to work to July 31, 2011, he himself believes the medical information he provided indicates that he was able to work subject to restrictions. He submitted that it was inappropriate for Dr. Armstrong to have “translated” the medical documentation provided and submitted that he should have conducted his own assessment of the applicant.

26In written material he submitted prior to the Summary Hearing, he stated that in addition to the documentation attached to his Application, he had provided medical documentation to the insurance company in relation to his claim for sickness and accident benefits as well as Extended Disability Benefits (long term disability benefits), to Dr. K. Armstrong, the doctor at the employer’s medical centre, and that he had given “[n]otice of the need for accommodation” to union officials.

27Prior to the Summary Hearing, the applicant provided the following additional documentation:

• August 19, 2011 Canada Pension Plan Disability Decision, denying CPP Disability Benefits (the applicant indicated that this had not previously been provided to the respondents).
• August 8, 2011 note from his doctor listing his diagnoses and medications, and stating that “he is not physically capable of returning to any form of employment”. It also stated that “he has likely reached maximum medical recovery”.
• April 9, 2012 note from his doctor, apparently attached to a “referral” for him to attend programs at the Homewood Health Centre. It also indicated that “the employer’s current refusal, since October 20, 2010, to afford Mr. Matthews an opportunity to work within his assigned restrictions” had had an impact on his mental health issues”.
• August 1, 2012 Attending Physician’s Statement for Manulife Financial, signed by his doctor, indicating he is “unfit for any work, permanently, totally disabled”. He indicated the applicant had been unable to work since October 20, 2010 and that he would “Never” be able to return to work.

28At the Summary Hearing, the applicant also indicated that he has a more “comprehensive medical brief” relating to these allegations, and continuing to the present day. Upon questioning by me, he indicated that further medical documentation he believed he had sent to the Tribunal was an April 13, 2011 report from a doctor, detailing the restrictions as per the April 4, 2011 documentation provided on a Manulife Financial Sickness and Accident form, a June 2, 2011 form from an admitting psychiatrist at the Homewood Health Centre relating to his second admission at that institution, a July 21, 2011 Manulife medical form submitted to Manulife and to Dr. Armstrong, stating that his restrictions are permanent, and the second and fourth pages of the Discharge report from the Homewood Health Centre, dated July 27, 2011. Both the employer and the union objected to permitting the applicant to provide any further medical documentation, stating that he is not an unsophisticated litigant and expressing concern that he is attempting to expand the scope of this Application. The applicant indicated that he has serious health problems and that he may be confused as a result. The applicant also submitted that he believes that the medical documentation before me is sufficient for his arguments. For reasons which are stated below, I do not find that it is necessary for me to consider the absence of the above-noted additional documentation he described.

29The applicant submitted that he has experienced a disadvantage due to his disability, in that the respondents did not accommodate him to the point of undue hardship and that the respondents have discriminated against him, both directly and indirectly. He submitted that the respondents have ignored “their substantive and procedural obligations to ‘accommodate to the point of undue hardship’” because there was no assessment of him or consideration of individualized accommodation for him. He submitted that the medical documentation confirms “a physical and mental health disability, clearly and unequivocally, with extensive restrictions” and that it is “beyond question” that the respondents were aware of his mental and physical disabilities, as well as their extent and as well as his permanent disabilities. He submitted that he attempted to cooperate in the accommodation process by providing “sufficient information for a proper assessment of the employee’s accommodation needs”, but that the respondents “ignored and rebuffed” him. He submitted that accommodation of his needs would not involve any hardship at all and that therefore the respondents could not assert undue hardship. He submitted that without a “review”, no one could reasonably estimate whether or not he could have worked, and submitted that this was therefore discrimination on the basis of disability.

30With regard to his allegations against the union, he submitted that it is required to cooperate in “any accommodation the employer may consider”. He indicated that he was not suggesting that the union was obliged to provide him with a job, but that they were to avoid interfering with the employer’s accommodation of his needs. He also submitted that the fact that the union has refused to do an assessment of him and “failed its duty to ‘explore’ accommodation on [his] behalf” is discriminatory.

31He submitted that the union “based on the collective agreement, determines who receives ‘regular’ jobs based on seniority and awards ‘appointed jobs’ based on seniority, union involvement, and alleged skills and abilities” [emphasis in original]. He submitted that “at no time is there any consideration to any Code obligations when considering persons with a disability”. He also submitted that seniority provisions of the collective agreement do in fact require accommodation in compliance with the Code, but the respondents refuse to implement it.

32The applicant also submitted that the factors of seniority, union involvement and skills and abilities, used by the union in awarding its WSIB Representative position, are not neutral, as they have an adverse effect on persons with disabilities. He submitted that this also “directly/indirectly involve[s] the employer…as this is a negotiated clause in the collective agreement”.

33He submitted that neither respondent would consider accommodating his needs and that when he made an application for the union position as a WSIB representative, it was simply by way of a suggestion for accommodating his needs. He submitted that it was like saying “here’s my suggestion…what is yours?”, but that he received no response.

34The respondent employer CCI submitted that in Matthews v. Chrysler Canada Inc. 2011 HRTO 1939 (“Matthews 2011 HRTO 1939”), the Tribunal has already dealt with and dismissed the applicant’s allegations that the employer failed to accommodate him at work “on or around October 18, 2011 [sic]”. It submitted that there are allegations in this Application which overlap with those of his earlier Application, and submitted that the applicant’s “attempt to re-litigate such issues amounts to an abuse of process”. The respondent employer CCI submitted that any allegations relating to October 20, 2010 and previous to that date, should be dismissed. Counsel submitted that though the applicant states that the Application was ultimately withdrawn, there was a hearing before a Tribunal Vice-Chair, and it resulted in a decision which dealt with the same parties and the same allegations that the union and the employer failed to accommodate him in October, 2010, including October 19 and 20, 2010. The employer CCI cited Snow v. Honda of Canada Manufacturing 2007 HRTO 45, Krpan v. Nimer 2012 HRTO 33, Campbell v. Toronto District School Board 2008 HRTO 62 (“Campbell”) and British Columbia (Workers’ Compensation Board) v. Figliola, 2011 SCC 52, [2011] 3 S.C.R. 422. It submitted that in Campbell the Tribunal dealt with issue estoppel, abuse of process and s. 45.1 where the same issues had been raised and determined in another forum, namely the Special Education Tribunal:

The legal principles that the parties have addressed come under various guises: issue estoppel, abuse of process, and section 45.1 of the Code. At the end of the day, whatever the guiding legal framework, the essential question is this: should the Tribunal go forward to hear and determine matters that were also before the SET, and on which the SET made findings?

It is not necessary for me to engage in a full discussion of issue estoppel here. It is a doctrine developed by the courts to prevent re-litigation of issues between the same parties. Issue estoppel does not fit easily with the present context, where issues that have been litigated between the complainant’s mother and the Board (before the SET) are now being raised in a proceeding involving the complainant, the Board and the Commission.

In my view, the policy concerns that are raised in this case are addressed more aptly and fully under the principle of abuse of process and section 45.1 of the Code.

Abuse of Process

They term ‘abuse of process’ has been applied to a variety of circumstances in which a court or a tribunal has found it unfair to permit proceedings to continue…

It can also apply to an attempt to re-litigate a claim, as described by the Supreme Court of Canada in CUPE:

…Canadian courts have applied the doctrine of abuse of process to preclude relitigation in circumstances where the strict requirements of issue estoppel (typically the privity/mutuality requirements) are not met, but where allowing the litigation to proceed would nonetheless violate such principles as judicial economy, consistency, finality and the integrity of the administration of justice. (para.37).

In my view, having regard to the above, it would not be fair to permit the re-litigation of issues that have been determined by the SET. To apply the words used by the Supreme Court of Canada, allowing the litigation to proceed on those matters would violate the principles of judicial economy, consistency, finality and the integrity of the administration of justice. It would improperly place the Tribunal in the position of an appellate court with respect to the decision of an expert tribunal, acting within its jurisdiction as part of a comprehensive scheme for the accommodation of special education students.

SECTION 45.1 OF THE CODE

Having concluded that it would be an abuse of process for the Tribunal to hear matters that were the subject of findings of the SET, it remains to consider whether section 45.1 has any effect on the issues.

In addition to issue estoppel and abuse of process, section 45.1 provides a basis for the Tribunal to preclude the re-litigation of issues that have been dealt with in another forum. This provision, along with other parts of the Code, gives expression to a legislative intention to avoid the duplication of proceedings. The meaning to be given to section 45.1 remains to be developed by this Tribunal, and it is unnecessary to give any definitive opinion on it here. My conclusion for the purposes of this case is that section 45.1 provides a discretion to the Tribunal which is at least as broad as the doctrines of issue estoppel and abuse of process. On the facts of this case, the bases for my finding that abuse of process applies to prevent the re-litigation of certain issues equally support the application of section 45.1

The above suggests to me that the question of whether a matter has been dealt with ‘in substance’ does not turn on technical considerations, nor is it dependent on the kind of criteria applied under legal doctrines such as issue estoppel. Further, a decision about whether a matter has been dealt with ‘appropriately’ does not require this Tribunal to be satisfied that it would have reached the same conclusion as that reached in the other forum. Section 45.1 does not require the Tribunal to act like an appellate court.

35Secondly, the respondent employer CCI submitted that in the remainder of the allegations regarding discrimination and failure to accommodate his needs, the applicant fails to establish a prima facie case and there is no reasonable prospect of success with respect to these allegations.

36The respondent CCI noted that the applicant has filed numerous Applications with the Tribunal and submitted that the applicant has simply made bald allegations. Counsel submitted that the applicant has not indicated how he could be accommodated, nor has he particularized how he has been refused accommodation.

37Counsel for CCI submitted that documentation provided to the doctor at the employer is not shared with the employer, due to confidentiality. Nonetheless, he noted the documentation provided by the applicant with his Application and submitted that it is clear that the medical documentation did not support a return to work, and indicated instead that the applicant was totally disabled. He also noted that the applicant himself acknowledges that he is in receipt of Extended Disability Benefits due to disabilities which are permanent and which render him, according to the medical documentation, totally disabled and unable to work. He submitted it is not possible to accommodate someone who is unable to work and cited Matthews v. Chrysler Canada 2011 HRTO 2053, (“Matthews 2011 HRTO 2053”), a decision which dismissed an Application filed by the applicant under the transitional provisions of the Code at section 53(5). In that Application, the applicant alleged that the same respondent employer had discriminated against him on the basis of disability and had failed to accommodate him at work in an earlier period. The Tribunal considered medical information provided to the employer which showed that for certain periods the applicant was “totally disabled and unable to work”. With regard to these periods of “complete disability”, the Tribunal stated as follows at paragraph 54:

It is inherently impossible to accommodate someone who is unable to work. Either a person can work with restrictions or cannot work at all. It is clear on the facts that the applicant should not have been working any job at the time he alleges that he was not accommodated…

38The employer submitted that here, as there, the applicant was totally disabled from work, as is evidenced by the medical documentation he has provided and by the fact that he is in receipt of Extended Disability benefits. It submitted therefore that it was inherently impossible to accommodate him. The employer noted that the applicant never suggested that the medical information he submitted was wrong, nor has he suggested that the decision to grant him Extended Disability benefits was wrong, and submitted that there is an inherent inconsistency in his position.

39The union denied having discriminated against the applicant either in employment or in membership in a vocational association.

40The union cited Central Okanagan School District No. 23 v. Renaud 1992 CanLII 81 (SCC) (“Renaud”) and Gungor v. Canadian Auto Workers Local 88, 2011 HRTO 1760 (“Gungor”) and submitted that in Renaud the Court ruled that a union could be found liable pursuant to the duty to accommodate only if it was a party to discrimination by the employer. It noted that one way in which a union could be a party to such discrimination is if it participated “in the formulation of a work rule that has the discriminatory effect on the complainant” and submitted that the applicant had pointed to no work rule or provision of the collective agreement between the union and the employer which has had a discriminatory effect on him. It asserted that the union does not assign “plant jobs” and the mere fact that the employer has regard to seniority in selecting workers for a posting is not inherently discriminatory. It also noted that Renaud indicated that a union could be found liable for failure to accommodate if it “impedes the reasonable efforts of an employer to accommodate” and submitted that the applicant has made no such allegation. Accordingly, it submitted that the allegations that it discriminated against the applicant by failing to accommodate him at work must be dismissed.

41The union supported the employer’s submissions regarding the applicability of the doctrines of res judicata and abuse of process and section 45.1 of the Code and submitted that the allegations relating to October 20, 2010 and the prior period should be dismissed on those bases, given the previous interim decision of the Tribunal in Matthews 2011 HRTO 1939.

42Further, the union submitted that according to the medical documentation provided by the applicant with his Application, accommodation is not possible for the applicant and he has been at all material times “totally and permanently disabled and unable to work at any occupation”.

43The union also submitted that while it is not entirely clear from the way in which the Application is drafted, it appears that the applicant also alleges that in not awarding him the WSIB Representative position for which he applied, the union has discriminated against him on the basis of disability. It denied any such allegation, noting that the applicant was employed by Chrysler, not by the union, and the WSIB Representative position was a union office, not a Chrysler position, and submitted that this position has nothing to do with the employer’s duty to accommodate the applicant.

44It further submitted that when selecting a candidate for such a position, the union’s selection committee considers the neutral factors of skill, ability, participation in the union/union involvement and seniority. It asserted that the applicant has not been involved with the union, nor has he engaged in any volunteer activities, nor has he ever indicated that he could not do so due to disability or other Code related concern. It notes that in his letter of application for the position, he “adopts an aggressive tone and disparages both the union and its officials”. It noted that in Matthews 2011 HRTO 1939, the applicant had also made an allegation that the union had discriminated against him in not hiring him for two union positions, but that the Tribunal dismissed that allegation and stated that the duty to accommodate only arises “when a requirement or qualification is discriminatory”. The union submitted that there was nothing discriminatory in the requirements for the position of WSIB Representative, and there is no basis for a finding that by not awarding the position to the applicant, the union has failed to accommodate his disability.

45Finally, the union submitted that it is inconsistent of the applicant to assert that he should have been awarded the WSIB Representative position, as “he was, and continues to be, totally and permanently disabled and unable to work at any occupation”.

46With regard to an allegation of discrimination in membership in a vocational association, the union submits that the applicant provided no particulars to support an allegation that the union was in any way negligent in carrying out its role in the accommodation process, but that in any event, there is no allegation that the union’s conduct was discriminatory based on a prohibited ground.

Decision

47The applicant’s allegations regarding a failure to accommodate his disability in October, 2010, are dismissed. In Matthews, 2011 HRTO 1939, the Tribunal has already considered and made its decision regarding the applicant’s allegation that the respondent employer CCI failed to accommodate the applicant upon his return to work in October 2010. It also determined that other issues raised in that Application could proceed, and in that sense, was an interim decision in that Application. However, I find that it appropriately dealt with the applicant’s allegations of a failure to accommodate his disability upon his return to work in October 2010. At paragraph 19 of that decision, the Tribunal stated:

The applicant stated CCI’s failure to accommodate him occurred after he returned to work on October 19, 2010 when CCI did not place him in his pre-heart attack position and did not provide him with any work after that date…In my view, the applicant has no reasonable prospect of proving CCI failed to accommodate his disability.

48Though the applicant indicates that he had not put his best case forward and he withdrew that earlier Application, he has had the opportunity to have those allegations considered and the Tribunal has in fact made its final determination regarding those allegations. Simply because the applicant ultimately withdrew the Application, however, and contrary to his assertion, the interim decision does not “disappear” or “die”. The allegations of a failure to accommodate him upon his return to work in October 2010 have been considered and determined. I find that allowing the litigation to proceed on that same matter would violate the principles of judicial economy, consistency, finality and the integrity of the administration of justice. In these circumstances, to permit him to put those self-same allegations before the Tribunal for consideration in a second Application, in order to re-litigate them, would be to permit an abuse of process.

49Further, I find that the issues that the applicant attempts to put before the Tribunal which relate to whether he was discriminated against on the basis of disability in October, 2010, including October 19 and 20, 2010, have been appropriately dealt with in another proceeding which resulted in this Tribunal’s interim decision in Matthews 2011 HRTO 1939. Accordingly, I find that s. 45.1 provides an additional basis for precluding the re-litigation of the applicant’s allegation that the respondent employer CCI failed to accommodate him upon his return to work in October, 2010.

50With regard to the remainder of the allegations in this Application, I note that the power of the Tribunal is limited to dealing with Applications alleging a violation of the Code, which prohibits discrimination on specific grounds. It does not have the power to deal with all claims of unfairness or all disputes between parties.

51The Case Assessment Direction issued in this matter also indicated clearly that at the summary hearing the applicant was to point to evidence on which he would rely to prove a link between the respondents’ actions and the grounds cited. He has not, however, been able to identify evidence which would, if proven, provide the necessary link between the respondents’ actions and the grounds cited. Without such evidence, his Application cannot succeed. I find that there is no reasonable prospect that the Application will succeed and it is dismissed.

52As noted above, the Tribunal has already disposed of the allegation that the employer failed to accommodate the applicant at work in October 2010. The next medical information after that date was the November 10, 2010, Attending Physician’s Statement indicating that the applicant would be hospitalized for assessment from November 10, 2010 to January 5, 2011. Following that was the psychiatrist’s January 5, 2011 hospital discharge report which suggested a further period of hospitalization and indicated that at that time, no definitive return to work date could be provided and that he would first need a period back in the community as an outpatient. Following that, the applicant’s family doctor’s report from the next day which states certain physical restrictions for a return to work, but also indicates that he was totally disabled and unable to return to work at that time. In the circumstances, I am satisfied that though certain physical restrictions were stated, read in tandem with the psychiatrist’s January 5, 2011 discharge report, this did not support a return to work.

53The next medical documentation which the applicant states he gave to the employer or its medical centre was the April 4, 2011 letter which was attached to an application for CPP disability benefits and clearly stated that he could not return to work. In fact, it stated that his condition was worsening. Though the applicant submitted that his application for CPP disability benefits was denied in August 2011, he has also allowed that he did not tell the employer about the denial. Rather, the only information the employer or its medical centre had was the report which indicated that he was incapable of a return to work. In those circumstances, there was no basis for the employer to conclude that he could be accommodated in the workplace.

54The next medical report, dated July 27, 2011, indicated that the applicant was again in a residential program for psychiatric illness at a hospital. It stated that upon discharge, he was “unable to work due to medical illnesses”. There is no indication that the applicant provided any medical reporting to the employer or its medical centre after that time, indicating that he was capable of a return to work, modified or otherwise. Again, in these circumstances, there was nothing to lead the employer to conclude that the applicant could be accommodated in the workplace.

55I do not find that the additional documentation provided by the applicant in advance of the summary hearing, or described by him at the summary hearing, alters this finding in any way. I note that the applicant himself indicated at the summary hearing that he felt the documentation before the Tribunal was sufficient for his arguments. Moreover, I find that none of the medical reports produced or described by the applicant and provided to the employer or its medical centre in the relevant time period would have triggered an obligation to provide accommodation at work, as it was not supportive of a return to work.

56Similarly, in the absence of support for a return to work in the medical documentation he provided, the applicant has no reasonable prospect of success in establishing that the respondents discriminated against him by relying on the medical documentation he provided instead of conducting their own assessment of his abilities. As noted above, documentation provided by the applicant with his Application included medical documentation from the doctor at the employer’s medical centre, indicating that the applicant was not fit for a return to work. I note that this documentation is consistent with the other medical documentation provided by the applicant.

57Given that the medical reports provided by the applicant to the respondent employer CCI in the relevant time period did not support a return to work, the applicant has not been able to point to evidence which would link the respondents’ actions and the grounds cited. Though the applicant submits that he provided “sufficient information for a proper assessment” of his “accommodation needs”, the language of the Tribunal decision in Matthews 2011 HRTO 2053 is equally applicable here: “It is inherently impossible to accommodate someone in the workplace who is unable to work. Either a person can work with restrictions or cannot work at all.” The applicant’s allegation that the respondent employer discriminated against him by failing to assess him or to provide accommodated work, has no reasonable prospect of success, and is dismissed on that basis.

58In considering the applicant’s allegation that the union discriminated against him by not securing accommodated work for him, I have reference to Gungor where the Tribunal applied the analysis from Renaud:

In the case before me, there is no provision in the collective agreement between the union and the employer that had a discriminatory effect on the applicant. As previously indicated, the posting provision in the collective agreement merely states that the person selected for a posting will be the most senior employee from among those that have the abilities to perform the work to be done. There is nothing inherently discriminatory about this collective agreement provision.

59Similarly, in this case, the applicant has not pointed to any provision in the collective agreement which has had a discriminatory effect on him. Further, he has pointed to no provision in the collective agreement which stipulates that it is the union who directs the workforce in assigning work - he has pointed to nothing which would alter the union’s role in providing accommodation and therefore nothing to alter the circumstances which, according to Renaud, could make the union liable for a failure to accommodate. The applicant has pointed to no evidence to establish that the union participated in the formulation of a work rule which had a discriminatory effect on him, and in fact stated that the seniority provisions of the collective agreement do in fact require accommodation in compliance with the Code. He submitted that the respondents simply refuse to implement it. This then leads to a consideration of whether the union has become liable for a failure to accommodate in the second way contemplated by the Court in Renaud.

60The second way in which the Court in Renaud found that a union could become liable for a failure to accommodate is by impeding the employer’s efforts to accommodate the employee. In this regard, the applicant has pointed to no evidence that the union impeded efforts by the employer to provide him with accommodated work. Indeed, as the union notes in its submissions, the applicant has alleged that the employer made no efforts to accommodate him, and thus, it would be incongruous for the applicant to assert that the union impeded the employer’s efforts. In any event, the applicant has not pointed to evidence that the union blocked the accommodation process.

61In this case, the applicant has pointed to no evidence to indicate that the union participated in the formulation of a work rule which had a discriminatory effect on him, nor has he pointed to any evidence that the union impeded any efforts by the employer to provide him with accommodated work. Accordingly, the applicant’s allegation that the union discriminated against him in his attempts to obtain accommodate work, is dismissed as having no reasonable prospect of success.

62With regard to the question of whether the union discriminated against the applicant by not awarding him the job of WSIB Representative, he asserted that this was his “suggestion” regarding how he could be accommodated. He appears to have confounded employment with the union and employment with the employer CCI and it is unclear how he reasons the union should have been open to his “suggestions” regarding accommodated employment with them. While he may allege that the union discriminated against him in not awarding him the position of WSIB Representative, it is not the same as saying this was suitable accommodated work which should have been provided to him by his employer.

63In connection with his allegation that the union discriminated against him in not awarding him the position of WSIB Representative, I note that the applicant has provided no information to indicate what the job requirements for the posting were. Rather, he has simply asserted that since he has a disability and there was a position he applied for and did not get, the union has discriminated against him on the basis of disability. He has pointed to no evidence to indicate that this was a job he could do, nor even that this was a job which would have been possible for him to do given his restrictions. He has pointed to no evidence that a requirement or qualification for the position was discriminatory. Further, especially where the medical documentation he provided indicates that he was disabled from all work, it is unlikely that he could point to evidence which would indicate that this was work suitable to his limitations. The applicant applied for a job with the union and has made a bald assertion that the fact he did not get it was discriminatory. He asserts that the factors of seniority, union involvement and skills and ability are not neutral factors but have had an adverse effect on him, but has pointed to no evidence to establish that fact or link those factors to any Code ground. For his claim that the decision to award the job to someone else was discrimination on the basis of disability, the applicant would need to be able to point to evidence linking the union’s decision with his disability. He has pointed to no such evidence. Without such a link, there is no reasonable prospect that this allegation would succeed and it is dismissed on that basis.

64The applicant has provided no particulars, nor has he pointed to any evidence upon which he would rely, to support an allegation that the union has discriminated against him in respect of his membership in a vocational association. Accordingly, this allegation is dismissed as having no reasonable prospect of success.

65For all of the above reasons, the Application is dismissed.

Dated at Toronto, this 8th day of February, 2013.

”signed by”

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Maureen Doyle Vice-chair