Szmiett v. Ontario Power Generation, 2013 HRTO 679

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Adam Szmiett Applicant

-and-

Ontario Power Generation and Babcock and Wilcox Canada Ltd. Respondents

INTERIM DECISION

Adjudicator: Kathleen Martin Date: April 23, 2013 Citation: 2013 HRTO 679 Indexed as: Szmiett v. Ontario Power Generation

APPEARANCES

Adam Szmiett, Applicant Jesse Kugler, Counsel

Ontario Power Generation, Respondent Angela Rae, Counsel

Babcock and Wilcox, Respondent Patrick Moran and Erin Miller, Counsel

Introduction

1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) on October 13, 2010, alleging discrimination with respect to employment on the basis of disability. The Application indicates that the date of the last event is April 8, 2009 and continuing.

2By Case Assessment Direction dated October 18, 2011, the Tribunal scheduled a one day hearing for the purpose of hearing evidence and legal submissions with respect to a number of preliminary issues, including a request to dismiss because of alleged delay and alleged federal jurisdiction (pertaining to Ontario Power Generation) and a request to defer because of an ongoing grievance.

3At the outset of the hearing, the applicant stated that he was prepared to concede that Ontario Power Generation (“OPG”) was federally regulated and further that he consented to the request that the Application be dismissed against it. The respondent Babcock took no position on the issue.

4As I did not hear any evidence regarding the issue of jurisdiction I do not find it appropriate to determine the issue of jurisdiction. However, in the circumstances, in light of the applicant’s consent to a dismissal, I dismiss the Application against OPG.

5At the hearing, the remaining parties led evidence and made submissions on the issue of delay. The parties had previously filed submissions on delay and deferral. I have considered the evidence given and all of the submissions made in determining the issues of delay and deferral.

The Evidence

6I set out below the background and a summary of the evidence presented. The summary is drawn from the evidence of the three witnesses who gave evidence in the proceeding: Patrick Widmeyer, an employee of the International Brotherhood of Boilermakers, the applicant’s union; Chris Coughlan, maintenance manager at Babcock & Wilcox Canada Ltd. (“Babcock”); and Dan Legere, Labour Relations Manager at Babcock, at the time material to the Application. On consent of the parties, the witnesses adopted their witness statements as their evidence in chief and provided additional oral evidence including through cross-examination by the opposing party.

7The applicant is a member of the International Brotherhood of Boilermakers (the “union”). Babcock is an international provider of energy products and services and is a member of the Electrical Power Systems Construction Association (“EPSCA”). EPSCA negotiates and administers construction trade collective agreements on behalf of employers performing construction industry work for the Bulk Electrical System on Ontario Power Generation, Bruce Power LP and Hydro One property.

8The Application arises out of the applicant’s referral from the union’s hiring hall to work being performed by the respondent Babcock at OPG.

9Babcock is bound to the collective agreement between EPSCA and the union. As per the agreement, it is the responsibility of EPSCA or the employer with the approval of EPSCA to notify the union of staffing required for work to be undertaken by employers under the scope of the agreement. The employees are then hired by the employer and once the work is completed they are laid off and return to the hiring hall to await their next referral by the union.

10In or around March 2009, OPG contracted Babcock to perform certain construction work at OPG’s Darlington nuclear generation station. Babcock requested that the union refer a number of boilermaker journeymen and apprentices to perform the work on the OPG job. The documentation reflects that the applicant was referred as a 3rd year apprentice.

11Boilermakers are required to undergo and complete training prior to commencing work on an OPG nuclear site including radiation protection training (referred to as “orange badge training”). On March 30, 2009, the applicant reported to Babcock to start training to obtain the qualifications required by OPG to work in its nuclear facilities.

12The applicant has a learning disability which impairs his ability to read. As a result, the applicant could not successfully complete the training without accommodation.

13On or about April 2, 2009, the applicant advised his supervisor employed by Babcock that he had a reading disability and that he required assistance with the computer based training. The supervisor advised the applicant that he would contact OPG, advise them of the issue and respond to the applicant’s request.

14On April 3, 2009, an OPG representative, accompanied by a Babcock representative, advised the applicant that OPG would not accommodate his disability and that the applicant was a health and safety hazard. The applicant urged them to reconsider and later that day the applicant was advised that OPG would not reconsider its denial of his request for accommodation and that his employment was to cease immediately.

15On April 8, 2009, Babcock issued a layoff notice to the applicant’s union. Among other things, the letter stated that a request to provide the applicant with special support to obtain site access qualifications to Darlington and /or to provide a dedicated escort to support safe site access was denied by OPG.

16Babcock completed the job at Darlington on or about May 30, 2009. The other union employees that had been referred at the same time as the applicant were laid off in the period from May 17, 2009 through May 30, 2009.

17Following the applicant’s lay-off, the applicant’s union dispatched the applicant to a different job closer to his home. In addition, the applicant’s union continued to have contact with OPG (although not Babcock) about the issue of the applicant’s disability and accommodation. The union and OPG decided to seek a medical assessment and share the costs of the same. In or about November 2009, OPG contacted Babcock to advise of the medical assessment. Thereafter, on December 16, 2009, Babcock agreed to contribute (along with OPG and the applicant’s union) to the cost of the medical assessment of the applicant for the purpose of assessing the applicant’s functional reading level and any restrictions related to his disability. In an email sent to OPG on December 9, 2009, Babcock stated that accommodation would be reviewed on completion of the assessment and subject to the circumstances of future dispatches involving the applicant.

18On March 8, 2010, the medical assessment was released. In or about May 3, 2010, the union sent OPG a letter requesting that the applicant’s employment be reinstated and that he receive accommodation in the workplace. A copy of the medical assessment was included.

19The applicant’s union did not attempt to dispatch the applicant to OPG again because he was employed elsewhere.

20The union did not forward the medical to Babcock until July 27, 2010. On that date, the union wrote directly to Babcock requesting that Babcock “return Mr. Szmiett to work with any necessary and appropriate workplace accommodations forthwith”. The union stated that if it did not hear from Babcock by August 6, 2010, the union would assume that Babcock did not intend to return the applicant to work and would “proceed accordingly”.

21In his testimony, Mr. Widmeyer stated that the work he was referencing in the union’s correspondence related to facility training at Cambridge, and that on a going forward basis, the union wanted to return the applicant to work at Babcock.

22Babcock did not respond to the union’s correspondence. In explaining why, Mr. Legere stated that there were no ongoing projects at the time that the applicant could have been returned to.

23Mr. Coughlin stated that during the period from the applicant’s lay-off to at least August 6, 2010 (the date that Mr. Coughlin inquired into), there was no other work done by Babcock at Darlington, the facility where the applicant had been laid off. Mr. Coughlin also expressed the view that there was probably some work at another facility, Bruce Power, although not on July 27th since they are usually busier in the spring and fall.

24Babcock was not involved in any further discussions with the union from the time of the applicant’s layoff until a grievance meeting on November 17, 2010 addressing a grievance that had been filed by the union on September 28, 2010 alleging that the failure to accommodate the applicant was a continuing breach of the agreement.

Decision and Analysis

Should the Application be dismissed for delay?

25Section 34 of the Code states:

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.

26Pursuant to section 34, the Tribunal will not deal with an application filed more than a year after the incident, or a last incident in a series, unless it is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

Was the Application filed within the limitation period?

27In this case there is a threshold issue of what constitutes the alleged “incident” or series of incidents upon which the Application is based.

28The applicant argues that this case is about a series of incidents and the Application is not untimely because it was filed within 12 months of the last incident in the series. While the applicant’s argument evolved somewhat over time, in his oral submissions, the applicant argued that the series consists of two incidents: the layoff on April 8, 2009; and the request for reinstatement and accommodation on July 27, 2010. The applicant argues that in each of the incidents, the duty to accommodate was triggered (as there was ongoing work) and breached by Babcock. The applicant alleges a breach of substantive accommodation, but also a breach of the procedural duty to consider the issue of suitable accommodation (arguing that there is no evidence of any attempt to do so). The applicant submits that while there is a gap between the two incidents, the delay was connected to the applicant having an assessment, which should not be held against him.

29Babcock argues that this case is about a single alleged incident of discrimination – the applicant’s layoff in April 2009 – and that the Application was filed 18 months later which is outside the prescribed time limits under the Code. Babcock contends that after April 2009, the union never referred the applicant to any other work and thus there can be no further incident of discrimination. In fact, Babcock states that there was no further job opportunity for which the applicant was turned down. If the Tribunal finds that there is two separate incidents, Babcock argues that the earlier incident should be dismissed on the basis of delay given that it was within the applicant’s control to raise the incident within a year since the medical assessment was released in March 2010.

30While I have carefully considered the respondent’s submissions, I find that there is a timely alleged incident of discrimination. The applicant alleges that on July 27, 2010, he requested reinstatement and accommodation and was denied the same by virtue of the respondent’s failure to respond and engage in the procedural duty to accommodate and/or provide the applicant with employment and accommodation. While I recognize there may be factual and legal disputes over whether or not the applicant can establish his allegation (given the respondent’s position that there was not work available at the time and the union did not dispatch the applicant) the issue before me at this stage is not to determine whether the applicant can make out his claim, but only whether there is an alleged incident of discrimination. I find that there is although in making this finding I do not express any view as to whether or not the applicant will be able to establish such an allegation.

31I now turn to whether or not the first incident, the April 8, 2009 layoff, forms a series of incidents for the purpose of s. 34 of the Code.

32In determining what is a series of incidents, the Tribunal has considered the nature of events and whether they may reasonably be viewed as a pattern of conduct, or are comprised of incidents related to discrete and separate issues without some connection or nexus: see Keith v. College of Physicians and Surgeons of Ontario, 2010 HRTO 2310 and the cases cited at paragraph 42. Further, in general, events are not part of a series of incidents if there is a break in the temporal connection between them. A gap of more than a year between events has, in a number of cases, been deemed to interrupt the series (see Savage v. Toronto Transit Commission, 2010 HRTO 1360, and Chintaman v. Toronto District School Board, 2009 HRTO 1225).

33In this case, I find that the incident of April 8, 2009 is not a series of incidents with the alleged event of July 27, 2010 and continuing for the purpose of the Code. The alleged incident of April 8, 2009 relates to a particular job at Darlington that ended at the latest on May 30, 2009. The evidence suggests that the timely incident does not relate to work at Darlington given that no work was being performed at Darlington at that time. The applicant did not have an ongoing employment relationship with Babcock in the interim; in fact, after his lay-off the applicant was referred by his union to a different job closer to his home and was not referred again to OPG because he was employed elsewhere. While in the intervening period between the two incidents, Babcock was involved in a limited way by agreeing to contribute to the cost of a medical assessment, this appeared to be for the purpose of future dispatches by the union. Further, I am mindful that there is a significant temporal gap insofar as the two events are separated by well over a year (approximately 14 months if May 30, 2009 is used as the last date work was performed by Babcock or over 15 months if April 8, 2009 is used). Notably this is a gap which does not relate to the time required to obtain a medical assessment given that the latter was completed on March 8, 2010 (within a year of the April 8, 2009 event).

34Having regard to these facts, including the temporal gap, I do not find that the incident of April 2009 forms part of a series of events for the purpose of section 34 of the Code. I have therefore concluded that the Application was filed over a year after the April 8, 2009 incident. I must now determine whether the delay in filing the Application in respect of that event was in good faith, and if so, whether it results in substantial prejudice.

Was the delay in good faith?

35To establish good faith, the applicant must, at a minimum, provide some reasonable explanation for the delay in filing the Application: See Corrigan v. Peterborough Victoria Northumberland and Clarington Catholic District School Board 2008 HRTO 424.

36In this case, the applicant has argued that there is good faith. The applicant argues that he acted with all due diligence in cooperating in an assessment of his ability so it could be determined whether he could perform his duties as a boilermaker with or without accommodation. The applicant states that following the release of the medical assessment, he raised the issue with Babcock. In essence, the applicant submits that his cooperation in obtaining a medical is indicative of good faith.

37In his submissions before the hearing, the applicant had also relied on his efforts to resolve the issue through discussions with both respondents as indicative of good faith. However, Mr. Widmeyer, the applicant’s union representative, agreed that there were no discussions with Babcock about the applicant’s employment from the time of his layoff until the November grievance meeting. In the circumstances the applicant did not renew his submissions and I presume that this aspect of his submissions is withdrawn.

38I do not find that the applicant has satisfied me that there is a reasonable explanation for the delay. While I have some sympathy for the applicant’s argument that his cooperation in obtaining a medical assessment should not be held against him, the timing of the release of the medical does not account for the delay in filing the Application. The fact remains that the medical was completed on March 8, 2010 which was within the one year period of the layoff and thus cooperation in the assessment process did not prevent him from filing the Application in a timely way. Notably, the applicant could have, but elected not to, provide the medical for a further four and a half month period and did not file his Application until October 13, 2010.

39In the circumstances, I am not satisfied that any delay was incurred in good faith.

40Having not been satisfied that there is good faith, I do not find it necessary to consider the question of prejudice.

Should the Application be deferred?

41The respondent Babcock initially also sought deferral of the Application pending the conclusion of the grievance filed September 28, 2010. While it is unclear if this request is still being pursued, if it is, then based on the material before me, I do not find that it would be fair, just or expeditious to defer this Application.

42Deferral of an application ensures that proceedings dealing with the same facts and/or issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law.

43Based on the material before me, which has not been challenged by the respondent, there is no concurrent or other live proceeding to defer to. While there is a grievance dated September 28, 2010, the applicant submits that the grievance was not processed through the grievance procedure and has not been referred to arbitration.

44In these circumstances, deferral is not appropriate. The request to defer is therefore denied.

Summary of Orders

• The Application is dismissed against Ontario Power Generation;
• The portions of the Application that relate to the incident of April 8, 2009 (including any claim regarding an ongoing duty to accommodate up to the end of May 2009) is dismissed pursuant to section 34 of the Code;
• The remaining incident related to the applicant’s request for reemployment and accommodation on July 27, 2010 and continuing will proceed; and
• The request to defer is denied.

Next Steps

45As the remaining parties agree to mediation, the Application will be scheduled for mediation.