Barron v. York Region District School Board, 2013 HRTO 726

Human Rights Tribunal of Ontario

Between:

Rusty Barron Applicant

-and-

York Region District School Board Respondent

-and-

Canadian Union of Public Employees and its Local 1734 Intervenor

Decision

Adjudicator: Naomi Overend Date: May 1, 2013 Citation: 2013 HRTO 726 Indexed as: Barron v. York Region District School Board

Written Submissions

Rusty Barron, Applicant Arthur Zeilikman, Counsel

York Region District School Board, Respondent Patricia G. Murray, Counsel

Introduction

1The applicant filed this Application on April 29, 2009 alleging discrimination in employment on the basis of disability and reprisal contrary to the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the "Code"). Subsequent to the filing of the Application, the applicant alleges that he was subject to ongoing harassment and discrimination by the respondent. On November 15, 2010, his employment was terminated.

2Subsequent to filing this Application, the applicant filed ten grievances that were addressed in an arbitration before Paula Knopf. Arbitrator Knopf issued a decision ("Award") on February 13, 2012, in which she decided the applicant's human rights issues as well as the ten grievances before her.

3The respondents argue that this Application should be dismissed because the subject-matter of the Application has been appropriately dealt with in the arbitration process. A preliminary hearing was held on October 19, 2012 to address the respondent's Request for an Order During Proceedings ("Request") to dismiss the Application under s. 45.1.

4At the October 19, 2012 preliminary hearing, the applicant agreed that the substance of his initial Application had been dealt with, but that the Award did not adequately deal with the substance of his ongoing allegations. At this point, the applicant had not sought to amend his Application to add these allegations, although he had notified the Tribunal of his ongoing concerns.

5I issued an Interim Decision, 2012 HRTO 2027, in which I indicated the applicant would be permitted to file a formal request to amend his Application. In that Interim Decision, I dismissed the allegations in the current Application in light of the applicant's concession that the Award had adequately addressed them.

6The applicant then filed a Request to amend his Application, which the respondent opposed. I allowed the amendments in a subsequent Interim Decision, 2013 HRTO 97, and advised the parties that I would hear submissions on whether these amended allegations should also be dismissed pursuant to s. 45.1 of the Code. Both the applicant and respondent filed written submissions and indicated that they wished to proceed on the basis of these submissions and their earlier submissions without making further oral submissions.

7Having reviewed the submissions and the material filed with the Tribunal, I concur with the respondent's position that the substance of these amended allegations have also been appropriately dealt in the arbitral process. My reasons follow.

Decision and Analysis

8Section 45.1 of the Code 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.

9The applicant does not dispute that the arbitral process before Arbitrator Knopf was a "proceeding" for the purposes of s. 45.1. The question that has been put before me is whether that proceeding "appropriately dealt with the substance" of this Application.

10In order to asses this, it is important to first determine the "substance" of the Application, as separate from the minutiae of the allegations. In determining whether the substance was "appropriately dealt with" by Arbitrator Knopf, I have reviewed her Award to determine whether she addressed the substance of the applicant's allegations. In addition, I have separately assessed whether the applicant had the opportunity to have his case heard in the earlier proceeding.

The Substance of the Application

11During the relevant period, the applicant held the position of Technical Support Technician, which involved him providing information technology assistance to schools within the respondent Board. He sustained injuries to his arms, shoulders, neck and back which led to him filing claims with the Workplace Safety and Insurance Board ("WSIB") and receiving WSIB benefits. The applicant asserts, and the WSIB apparently accepts, that these injuries were sustained in the workplace.

12At the time he filed this Application in April 2009, the applicant was still employed with the respondent. The original allegations in the Application (that have since been dismissed) are largely concerned with what the applicant alleged was harassing actions on the part of staff with the respondent, including reporting him to the Children's Aid Society ("CAS"). The applicant also addresses the respondent's failure to provide him with a proper work station, which he states resulted in lower back injuries.

13As noted above, the filing of this Application did not resolve his workplace issues and over the next 18 months, the applicant alleges he was subject to ongoing retaliation, work injuries, discrimination and other violations of his human rights, eventually ending with the respondent terminating his employment on November 15, 2010. During this period, the applicant's union filed ten grievances on his behalf.

14The applicant's additional allegations, as found in his amended Application, can be summarized as follows:

1. In or around August 2009, the applicant was told by the respondent that he would have to make up the time he took off for WSIB-related appointments.
2. The applicant was assigned to a desk job, performing "ad hoc tasks and duties" as a form of accommodation. When the applicant asked on numerous occasions to be returned to his previous work position, the respondent denied his requests.
3. In September 2009, the respondent denied the applicant a transfer to a "lateral position" and advised the applicant he would only be considered for the position once he received a "clean bill of health" and his "medical restrictions were removed."
4. On or around December 16, 2009, a WSIB Return to Work Specialist ordered the respondent to return the applicant to his previous work position.
5. In March 2010, the respondent required the applicant to perform work that violated his WSIB restrictions, which caused him discomfort, pain, swelling and muscle spasms. The applicant contacted the WSIB three days after doing this, and was told to perform work within his restrictions. Even after he stopped, he experienced these symptoms for "weeks thereafter."
6. The respondent told the applicant to take a shorter lunch break and skip his 15-minute breaks to make up for his slower rate of work. No other employee was subject to these demands.
7. On April 20, 2010, the applicant was asked to do work that exceeded his lifting restrictions. He asked for help from his supervisor, who in turn, designated someone else to respond to the request. This person did not complete the work, resulting in loss of information on a hard drive. The applicant was reprimanded for not completing the work himself in a timely manner.
8. On or around August 30, 2010, the applicant was transferred to another position in which his WSIB restrictions were no longer accommodated. The applicant completed a WSIB Work Refusal Form that day with the assistance of his union.
9. On or around September 10, 2010, the respondent unilaterally lifted the applicant's work restrictions to clear the way for him to do this position. The union agreed to the lifting of these restrictions.
10. On or around September 23, 2010, the applicant suffered a second workplace injury, this time in his shoulder, as a result of these restrictions being lifted. He went on a WSIB leave from September 24-October 5, 2010.
11. On October 6, 2010, the WSIB initially found that the applicant had sustained an injury to his shoulder, but denied that it was work-related. As a result, the applicant was denied "accommodation and/or modification" within the workplace.
12. The applicant returned to work on October 6, 2010 to a new position. He was told he could not leave his desk for "WSIB assigned break periods." After four hours of work, he was unable to continue working because of increased pain and inflammation in the affected shoulder. He asked for a change in position and workload, which was denied.
13. The applicant did not return to work the following day, but advised the respondent and WSIB that he would be seeking medical care.
14. Throughout the period from October 6 - November 15, 2010, the applicant maintained contact with the respondent. He stayed off work thereafter, until his employment was terminated for absenteeism on November 15, 2010.
15. The applicant provided the respondent with a letter dated December 5, 2010, from his doctor which outlined his injuries.

15The substance of the amended Application can be summarized as follows: The respondent failed to accommodate the applicant's disabilities appropriately during the final one and a half years of his employment after which his employment was inappropriately terminated.

Allegations Addressed in the Grievance Process

16With respect to allegation 1, the applicant alludes to this problem having existed at the time he filed his original Application in April 2009. Moreover, he filed three grievances with respect to incidents that are said to have occurred on July 15 and 21, 2009 and March 3, 2010 with respect to how his absences for WSIB medical appointments were to be "coded" for payroll purposes and whether he would be expected to make up the time by working extra hours.

17Arbitrator Knopf deals with these allegations in detail in her Decision and ultimately dismisses the first two as not disclosing unfavourable treatment and, with respect to the March 3, 2010 incident, as having "no linkage to any human rights issue."

18Allegations 2-4 all concern themselves with the applicant's perception that he was assigned to a position that was not proper accommodation, and was not allowed to transfer out of it, until the WSIB "ordered" the respondent to return him to his previous position. Although he does not specify anything but an end date, it is likely that this relates to the period between February 12 and December 16, 2009.

19Arbitrator Knopf addresses the applicant's allegation that he was denied an interview for a posted position that involved a lateral transfer in April 2009, but does not address anything occurring in September 2009. I would note that the applicant did not file a grievance with respect to the respondent's alleged failure to accommodate during this period.

20Likewise, the applicant does not raise the specific September 2009 allegation in his October 15, 2012 Affidavit ("Affidavit") attached to his Response to the respondent's Request to dismiss, but does refer to the April 2009 incident addressed in the arbitration. His only reference to anything happening in September 2009 is a denial of a request to leave work 15 minutes early to pick up his mother from the airport.

21Allegations 5-7 are addressed in the applicant's Affidavit, but do not appear to be specifically addressed in Arbitrator Knopf's Decision. The applicant explains that no grievance was filed with respect to allegation 5 because the workload demands were not ongoing, but offers no explanation for why there was no grievance that concur with the dates in allegations 6 and 7.

22I would note, however, that there was a grievance in the same time period (i.e., March 2010), which related to another incident. There was also a grievance dated May 12, 2010 in respect of a written reprimand issued by the respondent (which Arbitrator Knopf finds was warranted) for ongoing issues concerning the applicant refusing to follow clear directions. It is conceivable that the April 20, 2010 incident set out in allegation 7 was part of the "ongoing issues" referred to in the May 12, 2010 grievance given the temporal closeness and similarity of the allegations, but this is by no means clear.

23Moreover, under the heading "Miscellaneous 'alleged violations' of the Collective Agreement and the Human Rights Code," Arbitrator Knopf briefly addresses the applicant's assertion that he was not given support to complete his duties when he had problems with his back and was given an unreasonable workload. She finds that these disclose no prima facie violation of the Code, instead revealing "the kinds of complaints that many people express as a result of the demands of a responsible job."

24Allegations 8-15 deal with the immediate period leading up to, encompassing and following the termination of the applicant's employment. This is addressed in detailed in Arbitrator Knopf's Award, which upholds the respondent's decision to terminate the applicant's job.

25While not every specific allegation now raised by the applicant was individually addressed in the Award, Arbitrator Knopf clearly addresses both the applicant's human right's concerns about the failure (alleged and otherwise) of the respondent to accommodate his disability and the respondent's decision to terminate his job. In the first paragraph of her Decision, Arbitrator Knopf wrote:

At the outset, the parties agreed to a consolidation of all the grievances and agreed that I was properly seized with their disposition, including all aspects of the Human Rights issues arising out of the Grievor's employment relationship with the School Board.

The Applicant's Participation in the Grievance Process

26The applicant initially participated in the arbitration. On the first day of evidence, the applicant testified "to explain the factual circumstances and nature of his Human Rights complaints." During the presentation of his evidence, he expressed concern with respect to missing documents and the hearing was adjourned so that the parties could produce these documents. Arbitrator Knopf notes in her Award that on the next day of hearing:

After taking time to examine the Exhibit Books, the Grievor confirmed that those volumes, together with what had previously been filed, constituted everything that he had given to the Union to support his claims and this case.

27That day, the applicant was able to testify with respect to the documents submitted into evidence and the full chronology of events. However, Arbitrator Knopf notes that the applicant expressed concern during his evidence that day that documents from his WSIB file were missing. She notes that the release of material from the applicant's WSIB file was "solely in his control." He agreed to arrange for the release of that file and produce the relevant portions on the next hearing day.

28The next hearing day was adjourned early, but not before the applicant expressed his dismay that he had only learned that day that his "Human Rights complaints were being presented for determination at [that] hearing." Arbitrator Knopf commented in her Decision that the applicant's perception was "surprising" given this issue had clearly been put before, and addressed by, her on previous occasions.

29The applicant did not attend on the next scheduled date of the arbitration, instead sending a letter of protest in which he notes that the union representative presenting his case "has chosen not to submit evidence that I have supplied for these proceedings." The union, in fact, submitted further documents which had been supplied to it by the applicant, although whether these documents represented a portion or all of the applicant's WSIB file is not clear.

30Arbitrator Knopf, after hearing argument from the parties about the appropriate course of action, decided to proceed in the absence of the applicant, stating that it "would be an abuse of the arbitration process" to allow it to be "invoked and then halted or impeded by the whim of a witness or an individual grievor." As part of her reasoning with respect to the appropriate course of action, Arbitrator Knopf commented as follows concerning the allegations in the applicant's letter:

... although I am mindful of and concerned about the allegations contained in the Grievor's January 12th letter, I cannot and will not determine their validity. They are surprising given his sworn acceptance of the completeness of the documentation presented by the Union and marked as evidence, together with the later material he provided. However, even if the serious allegations are accepted at face value, they provide no explanation for the Grievor's failure to attend the hearing or failure to have the person he refers to as his "council" attend to explain his absences and/or request to take over carriage of the matter. [Emphasis added]

31The applicant did not participate in the grievance further. The parties to the arbitration agreed that, although the applicant had not been cross-examined, his testimony would be accepted, as were the documents filed on his behalf. Moreover, the respondent provided a witness for the purposes of cross-examination "in order to establish the points in the Grievor's favour that might not be revealed in all the documentation."

Application of the Law

32On the face of the Decision, the Award appears to have dealt with the substance of this Application. Specifically, Arbitrator Knopf addresses the allegations that the respondent discriminated against the applicant on the basis of his disability and/or reprisal, by (1) imposing unfair conditions on him that were not imposed on other employees; (2) failing to properly accommodate his disability-related limitations; and (3) terminating his employment.

33The applicant's primary argument that the substance of his Application has not been appropriately dealt with concerns what he alleges are the missing WSIB documents, which he asserts conclusively prove that he had a valid disability-related reason for not attending work at the time of the termination of his employment. His submissions focus on the fact that the WSIB eventually found that the applicant had two "permanent" workplace injuries.

34I would note that for the purposes of the protections found in the Code, whether or not the applicant's injury was caused by workplace conditions is irrelevant. Likewise, whether or not the injury was permanent is likewise irrelevant. I would note that these considerations do not appear to have been made an issue by the respondent in the arbitral process, nor is there any indication that they were relied upon by Arbitrator Knopf in her Award.

35The applicant submits that Arbitrator Knopf failed to adequately consider the "severity" of his injuries, which created "the impression that the conduct leading to the Applicant's termination was of mere caprice and unworthy of serious consideration." I disagree with this submission.

36In her Award, Arbitrator Knopf details the chronology of events in the period between October 6 and the termination of his employment on November 15, 2010. The evidence canvassed does not reveal that the applicant could not obtain the medical information to support his absence, but rather that he would not for several reasons, including privacy considerations and concern about who would cover the expense of obtaining it. Arbitrator Knopf concludes:

Having taken all this into consideration, the inescapable and overwhelming conclusion is that the Grievor was given many opportunities in the Fall of 2010 to explain why he absented himself from the workplace the day after the WSIB concluded that he had been provided with suitable modified duties and working conditions. The Grievor did not supply the Employer with any satisfactory medical documentation to explain his absence, nor has that been provided to date. His desire to have the Employer pay more than $25.00 towards the cost of the information may be understandable, but it does not provide an excuse for his ongoing refusal to fulfill his obligation of proving entitlement to sick leave pay or validating his absence.

37It is not appropriate for this Tribunal to sit in review of the Award of Arbitrator Knopf. On the face of her reasons, she took jurisdiction over the applicant's human rights concerns arising from his employment relationship with the respondent. It is clear from her reasons also that she conducted a proceeding in which the applicant initially participated and at which evidence was led concerning his alleged human rights violations. Even after the applicant absented himself from that proceeding, the Arbitrator put into place procedural protections to ensure that his case, including his human rights allegations, could be heard.

38In light of the above, it is appropriate for me to exercise my discretion under s. 45.1 to dismiss this Application. It is my view that it would be an abuse of process to allow the applicant to re-litigate his human rights allegation in the hopes of a process more to his liking or a different result.

Order

39The Application is dismissed.