Sharma v. The Regional Municipality of Waterloo Police Services Board, 2013 HRTO 722

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Rajiv Sharma

Applicant

-and-

The Regional Municipality of Waterloo Police Services Board, Waterloo Regional Police Association and Acclaim Ability Management Inc.

Respondents

INTERIM DECISION

Adjudicator: Kathleen Martin Date: April 30, 2013 Citation: 2013 HRTO 722 Indexed as: Sharma v. The Regional Municipality of Waterloo Police Services Board

APPEARANCES

Rajiv Sharma, Applicant Ayoob Khan, Representative

The Regional Municipality of Waterloo Police Services Board, Respondent Donald B. Jarvis, Counsel

Waterloo Regional Police Association, Respondent Caroline V. (Nini) Jones, Counsel

Acclaim Ability Management Inc., Respondent Renee Smith, 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”) on February 22, 2012, alleging discrimination with respect to employment on the basis of race, colour, place of origin, ethnic origin and disability as well as reprisal.

2By Case Assessment Direction (CAD) dated March 29, 2012, the Tribunal scheduled this matter for a Summary Hearing against the respondent Association.

3Since the issuance of the CAD, Responses have been filed by the other two respondents. In addition, the applicant and respondent Association filed documents and case law in respect of the summary hearing.

4The hearing took place by conference call and all parties participated. In addition to making submissions during the hearing, the parties had an opportunity to file further written submissions regarding documents relied on by the applicant following the hearing.

5After considering the material filed and submissions made, I have determined that the allegations concerning the denial of access to the central sick leave bank and the development of a related policy which addressed the issue of deficit credits can continue to proceed against the Association. The remaining allegations are dismissed as having no reasonable prospect of success.

BACKGROUND

6The following facts are drawn from the applicant’s materials and other sources where the facts appear to be uncontested.

7The applicant is a police constable with the respondent Regional Municipality of Waterloo Police Services Board (“WRPS”). The Association is the applicant’s bargaining agent. The respondent, Acclaim Ability Management Inc. (“Acclaim”), is a third party ability management service that entered into an agreement with the WRPS to adjudicate and manage absences and return to work requests.

8The Application arises out of the applicant’s efforts to reintegrate in the workplace after a lengthy absence for medical reasons. With one qualification, the allegations span the time period following the applicant’s return to work on April 14, 2009 to February 13, 2012 and relate to the applicant’s efforts to be accommodated and covered for his sick time during the period in question. The qualification relates to a general assertion in paragraph 41 of the narrative of the Application where the applicant alleges that the Association “abandoned him since September of 2008 until May 23, 2011 in clear contravention of his accommodation requests”. No particulars are provided in respect of the period that predates April 14, 2009.

9In essence, the applicant alleges that the respondents discriminated against him on the basis of race (and related grounds) and disability and subjected him to reprisal. The applicant self identifies as a Canadian male of South Asian origin and submits that the adverse treatment he was subjected to was different from “white” officers working for the WRPS.

10In order to provide context to the applicant’s specific allegations, it is necessary to outline the process for accessing and managing sick leave benefits and accommodation in the workplace in which the applicant is employed. Under the collective agreement between the WRPS and Association, members of the Association periodically contribute some of their accumulated sick time to a central sick leave bank. When a member’s regular sick leave credits are exhausted the member can apply to the Association for access to additional credits in the central sick leave bank. Before a member is allowed to draw from the bank, the member must submit a medical report for consideration by the Association who then determines eligibility for the credits.

11In March 2010, the WRPS and Association signed a Letter of Understanding regarding attendance case management which appears to modify this process. The parties agreed to support and endorse the use of a third party, Acclaim, for the purposes of adjudication and case management of absences of employees and for the purpose of return to work case management. The parties agreed to be bound by Acclaim’s decisions regarding a member’s fitness to perform their duties in relation to the use of sick bank credits and/or coverage under the Central Sick Leave Bank (including I presume access to credits referenced in paragraph 10 above), subject to the right to grieve any matter arising under the collective agreement.

12Against this backdrop, the applicant makes a number of allegations about the efforts to reintegrate him into the workplace in 2009. Most of the allegations are directed at the WRPS and Association. In particular the applicant alleges:

• The Association failed to accommodate the applicant and discriminated against him on the basis of race when it failed to grant him access to hours in the central sick leave bank which resulted in the WRPS imposing a “pay cut” on him during two periods: April 14, 2009 to June 22, 2011 and February 12, 2012 to June, 2012;

• The Association and WRPS developed a new Return to Work Policy and Sick Leave Process effective November 21, 2010 to selectively target the applicant which included placing sick leave deficit hours (which the applicant had at a significant level of minus 1,722.50) in reserve until employment is completed which he states placed him in an indefinite disadvantage;

• The Association and WRPS failed to accommodate him in respect of his medical restrictions (and more particularly, the Association refused to assist the applicant to be accommodated in contrast to other members who were supported in their efforts to be accommodated);

• The Association and WRPS demonstrated further acts of discrimination and differential treatment by organizing a “mediation meeting” in July 2009 without the applicant’s request or agreement at which time the applicant was offered a buy-out in exchange for his resignation.

13In addition, the applicant makes a number of allegations against Acclaim, which he describes as having been “contracted by” the WRPS and Association. Among other things, the applicant alleges that Acclaim acted contrary to his medical recommendations by denying his accommodations and forcing him into an “illegal appeal process”; and targeting him by contacting him by letters, emails messages and phone messages at his home.

14As noted above, Responses have been filed by the WRPS and Acclaim. In addition to disputing the merits, the WRPS raises several preliminary issues including that s. 45.1 applies in respect of allegations already dismissed by the Ontario Human Rights Commission; that the allegations that predate a year prior to the filing of the Application should be dismissed as untimely; and that the applicant has failed to establish a prima facie case of discrimination, harassment or reprisal on the basis of the grounds relied on.

Is there no reasonable prospect that the allegations will succeed against the Association?

15Details about the nature of a summary hearing were set out as follows in Dabic v. Windsor Police Service, 2010 HRTO 1994 at paras. 8 and 9:

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

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

16Initially, in the Case Assessment Direction, the Tribunal directed a summary hearing against the Association focusing on the first category; in particular whether, assuming the allegations to be true, the applicant’s allegations may be reasonably considered to amount to a Code violation on the part of the Association. However, it became apparent in the applicant’s submissions during the summary hearing that his allegations extended to a claim that the Association discriminated against him in certain actions based on his race and related grounds. Thus I specifically directed the applicant to outline the evidence that he would rely on to show a link between the Association’s actions and race and the related grounds.

17I now turn to the applicant’s specific allegations.

Association’s Alleged Failure to Assist in Re-integration through not granting access to the central sick leave bank

18The applicant argues that the Association failed to accommodate the applicant and discriminated against him on the basis of his race and related grounds by denying him hours from the central sick leave bank which directly resulted in his pay being “cut”, being threatened with cuts and not receiving pay during the period of his reintegration. While the applicant framed the impact on his pay as a “pay cut”, it would appear from the submissions made that the alleged discrimination is more analogous to the denial of benefit. During at least the initial reintegration, the applicant was only working and being paid for part-time. If the applicant had been given access to the central sick leave bank, the credits/hours could have been used to supplement his part-time salary.

19The applicant alleges that the Association’s conduct impeded the efforts of the respondent WRPS to reintegrate him into the workplace and/or accommodate him because the WRPS only paid him for the hours he worked as he had no other sick credits to draw on to supplement his income. While the applicant did not expressly refer to disability, I presume that this aspect of his argument is based on disability.

20In addition, the applicant alleges that the Association discriminated against him on the basis of race and related grounds in denying him access to credits/hours from the central sick leave bank. In this respect, the applicant points to several other “white” officers who were similarly situated to him but who were given access to the central sick leave bank and thus received no reduction in their pay during their reintegration. The applicant alleges that in fact, he is the only officer who has had his pay “cut” during medical reintegration or when off work.

21As with all of the applicant’s allegations, the respondent WRPS argues that the Association is a proper party and thus should continue as a party while also arguing that the allegations themselves are without merit. The respondent Acclaim takes no position on the inclusion of the Association as a party for any of the allegations.

22The respondent Association argues that the claim being advanced for the initial period is untimely, and that in any event, the applicant failed to cooperate with the process and that is why he was denied access to hours in the central sick leave bank. The Association also argues that with respect to the claim of discrimination stemming from the treatment of other employees, every request is different which results in a different response. The Association argues that Acclaim may have been engaged when one of the comparator employees was considered (which I presume means that the decision was out of the Association’s hands).

23Based on the submissions made, it is apparent that there are issues of timeliness as well as factual disputes between the parties.

24Having considered the issue, however, I am unable to conclude that this allegation, or at least a part of the allegation, has no reasonable prospect of success.

25On the issue of timeliness, given that at least some of the allegation (the claim in respect of the latter period) is timely, I find that a full response would be helpful to a consideration of the issue. Further, I am mindful that the respondent WRPS is also alleging delay in respect of some of the allegations against it. At this early stage, I find it appropriate to defer considering the issue of timeliness until the Tribunal has a more complete record before it and can deal with it in conjunction with all of the arguments on delay.

26The Association is therefore required to file a response to the allegation that the applicant was discriminated against by the Association’s handling of the central sick leave bank during the period of the applicant’s reintegration in respect of the period set out in the Application and any allegations of the implications which resulted from that including impact on his pension benefits. If Acclaim is involved for a portion of this time, I direct the Association to include a response for that period as well to the extent it is able to do so.

Association’s Role in New Sick Leave Policy

27The applicant also complains about the impact of the new sick leave policy on him, a policy which was brought in by the WRPS in consultation with the Association in the fall of 2010. The applicant alleges that this policy was brought in specifically to target him and that it reflects the indefinite disadvantage to him and “indefinite harassment” by the Association by being denied access to the central sick leave bank. While the impact is not entirely clear, it appears that given that the applicant had a significant deficit (because he did not have access to the central sick leave bank), the deficit will remain and ultimately be accounted for whenever his employment ends. The applicant points to other officers, who will not have this consequence, because they were given access to the central sick leave bank.

28As indicated above, the respondent WRPS takes the position that the Association should continue as a respondent. In respect of this claim, the WRPS submits that to the extent the policy (or its impact) is part of the applicant’s case the Association should continue to be a party given that they are part owners of the policy.

29While I have some hesitation, I have determined that at this early stage, this part of the Application should also proceed against the Association given its link to the first allegation. The Association should therefore respond to this part of the Application.

Association’s Alleged Failure to Accommodate

30The applicant also makes a general allegation that the Association failed to assist him in the accommodation process to get modified work by not “helping in the formulation of his work”. The applicant argues that this resulted in the applicant being off work for a number of months including May 2011 to November 2011.

31While I found the applicant’s submissions lacked clarity, it appears that his submissions are based on both an alleged failure to accommodate which I presume is based on disability and alleged discrimination based on race and related grounds (the latter premised on the claim that the Association has assisted other officers in the past).

32When I pressed the applicant for particulars of the alleged discrimination during the summary hearing, the applicant referred again to the “white” officers who were returned to work with no “pay cut” (thus referencing the sick bank issue addressed above). The applicant also referred to a “statement” from what appears to be his earlier complaint filed at the Ontario Human Rights Commission whereby a colleague reported that on May 7, 2006, the then President of the Association said something to the effect of: you have to be careful or someone will make a racial harassment claim against you. The colleague interpreted this as a “joke” being made in reference to the applicant who was then pursuing a complaint.

33In response, the respondent Association submits that it was willing to assist at every step and relies on the Tribunal’s jurisprudence which limits the manner in which a union or association can be found potentially liable for an alleged breach of a duty to accommodate.

34Whether treated as an alleged failure to accommodate based on disability and/or alleged discriminatory treatment based on race and related grounds, I find that there is no reasonable prospect that this allegation can succeed against the Association.

35In the case of an alleged failure to accommodate, the Tribunal has held that a union or association can only be party to such discrimination in two ways: by participating in the formulation of the work rule that has the discriminatory effect on the applicant; or by impeding the reasonable efforts of an employer to accommodate: See Gungor v. Canadian Auto Workers Local 88, 2011 HRTO 1760. Neither of these is applicable in this case. At best, the applicant’s claim is that the Association did not “help” in the formulation of the work rule – there is no allegation that the Association formulated any work rule or impeded the efforts of the WRPS in respect of modified work.

36With respect to the other aspect of the applicant’s claim – that the Association refused to assist him with the accommodation process because of his race – this could be a legitimate claim of discrimination. However, I do not find that the evidence pointed to by the applicant establishes that he has a reasonable prospect of establishing his claim.

37As noted above, the applicant points to two pieces of potential evidence. The alleged statement from 2006 is attributed to a former president of the Association, who is not identified as acting on behalf of the Association in the Application. In the circumstances, even if true, I do not find the statement would reasonably prove allegations that relate to the time period covered by the Application. The other piece of potential evidence relates to the sick bank issue which I have permitted to proceed. I do not find that evidence of the Association’s handling of the sick bank is particularly germane to their role in assisting or not assisting their members in getting modified work. Notably, beyond the applicant’s bald assertion that other members were given support, the applicant has not pointed to any particulars of his claim.

38For all these reasons, I find the applicant has no reasonable prospect of proving this allegation against the Association. The allegation that the Association failed to assist the applicant in the accommodation process to get modified work is dismissed.

The Role of Acclaim

39The applicant also argues that the Association should continue to be a respondent in respect of the hiring of Acclaim, the third party service agreed to by the parties to make decisions regarding absences and return to work (including presumably accommodation decisions). The applicant alleges that the Association has a “direct impact” on Acclaim (presumably in agreeing to support and endorse the use of Acclaim).

40The Application does contain allegations about Acclaim although it is unclear if all of the allegations are allegations of discrimination. I note that at the summary hearing, initially, the applicant made no submissions on Acclaim and only did so in reply after the WRPS articulated in the summary hearing that it understood the applicant was complaining about an alleged breach of privacy by Acclaim. While the applicant then supported the Association continuing as a party to address the actions of Acclaim, the applicant did not explain how the Association’s agreement to retain a third party was discriminatory. Further, the applicant made no particular submissions about the alleged breach of privacy.

41In the circumstances, with one exception, I see no basis for the Association to file a response to the allegations that pertain to Acclaim in the Application. I find that there is no reasonable prospect that the applicant can establish that the decision to support and endorse the use of Acclaim was an incident of discrimination by the Association as he has not pointed to any legal theory of why this decision was discriminatory and/or any evidence that establishes a link between this decision and any of the grounds he relies on.

42The exception relates to any decisions that may have been made by Acclaim regarding coverage through the central sick leave bank. As I note above in paragraph 26, if Acclaim is involved for a portion of the time covered by the Application, the Association is directed to include a response for that period as well to the extent it is able to do so.

Allegations in respect of the Mediation Meeting

43The applicant also alleges that the Association (along with the WRPS) demonstrated acts of discrimination and differential treatment by organizing a mediation meeting in July 2009 without his request or agreement. The applicant states that he was offered a buy-out and the acts of discrimination and harassment became more intensive day by day as he refused to accept resignation. It is unclear whether the applicant relies on race, disability or other ground.

44The WRPS argues that the Association should stay involved as a party given that it and the Association were joint participants in this process.

45The Association argues that it should not remain a party and that there can be no reasonable prospect of this allegation being proven given that the documentation reflects that the applicant’s counsel agreed to participate. The Association also argues that this allegation is untimely.

46The applicant responded to these submissions during the summary hearing arguing that he had to attend and hire his own lawyer as he had no other means to resolve the dispute over his “pay cut”. The applicant did not elucidate the theory of why this allegation is discriminatory nor articulate the ground(s) engaged.

47I find that there is no reasonable prospect that this allegation against the Association will succeed.

48The mediation process proposed was “without prejudice”. Even apart from this qualification, the documentation reflects that the applicant’s counsel agreed to the suggestion of mediation (which had been proposed to address outstanding issues including the applicant’s claim for benefits under the central sick leave bank). In the circumstances, I do not find there is any basis for finding that the fact of the mediation or the suggestions that may have been made at that time to resolve the issue can be reasonably construed as discriminatory. I note that the applicant did not choose to agree to a buy-out and does not suggest that his situation changed because of that fact.

49In the circumstances, this allegation is dismissed against the Association.

Other Allegations (which predate the relevant date of the Application)

50In response to the CAD scheduling the Application for summary hearing against the Association, the applicant was directed to file documents in support of his allegations of discrimination. The applicant filed 37 documents, almost half of which predate the relevant period of the Application (which as indicated above, apart from the general allegation related to 2008 and following, relates to the applicant’s reintegration in 2009).

51During the summary hearing, the applicant made limited reference to these documents and when specifically directed to explain how they were relevant, with a few exceptions, did not provide submissions other than requesting that I read them. The applicant accepted an opportunity to file further submissions on their relevance, which he has done so. In these submissions, the applicant alleges, among other things, that the documents reflect a “chain of systemic discrimination mixed with corporate history” and that the documents that predate the Application should be considered as a series of incidents and thus timely.

52The Association objects to the applicant’s reliance on documents which are untimely noting that a significant number of the documents are in respect of the period 2004 to 2009 and thus are untimely.

53Until the applicant’s reply submissions, I had presumed that these additional documents were submitted as potential evidence filed in support of the allegations as set out in the Application. Whether such evidence would be found to be relevant or not to the issues in the Application is an issue to be determined by the hearing adjudicator. While the applicant’s position continues to be somewhat unclear, if he is now asserting that there are additional allegations that are being made which occurred in the period that predate the events in the Application (which relate primarily to the period 2009 to 2012) then the applicant is required to do so in the appropriate manner by filing a request to amend and having it addressed in the normal course. I note that although in some cases, the Tribunal will permit an applicant to add particulars during a summary hearing to clarify the allegations in the Application this is quite different from what the applicant appears to be doing here if, in fact, the applicant is now seeking to expand his allegations by going back several years.

54In light of the foregoing, I do not intend to address the argument of delay being made at this time. Absent a request to amend, I will treat these documents as evidence that the applicant may seek to rely on at the hearing, the relevance of which will be determined by the hearing adjudicator.

55With respect any separate allegation of delay as it pertains to the incidents that have been pled in the Application already, while I acknowledge both parties have raised issues of delay, any issues of delay will be addressed, if necessary, following mediation.

56In conclusion, the allegations that the Association discriminated against the applicant by failing to provide him with assistance in respect of his efforts to be accommodated, by scheduling a mediation and making the offer identified, and by agreeing to support and endorse the use of Acclaim, are dismissed as having no reasonable prospect of success. The allegations regarding the applicant not being granted access to the central sick leave bank because of race and related grounds and the new sick benefit policy will continue to be processed against the Association.

57I issue directions regarding the continuation of the Application below.

Summary of Orders and Directions for Continuation of Application

58The Tribunal directs:

• The Application will continue be processed against the Association in respect of the allegation that the Association failed to accommodate the applicant on the basis of disability and discriminated against him on the basis of race when it failed to grant him access to hours in the central sick leave bank;

• The Application will continue to be processed against the Association in respect of the allegation concerning the new sick leave policy;

• The allegations in respect of an alleged failure to provide assistance in respect of the applicant’s efforts to obtain accommodation, the scheduling and conduct of a mediation, and the support of Acclaim are dismissed as having no reasonable prospect of success;

• The Association shall deliver to the other parties and file a Response to the issues that are proceeding against it within 35 days of the date of this Interim Decision;

• Should the Association wish to intervene on the remaining issues in the Application, the Association shall file a Request to Intervene within 35 days of the date of this Interim Decision;

• The applicant shall file a Reply to the Association’s Response in accordance with the Rules of Procedure;

• The Application will be placed now in the queue for mediation but no date shall be offered to the parties until at least 45 days after the date of this Interim Decision; and

• The outstanding issues regarding delay and any other preliminary issues shall be addressed if necessary following mediation.