HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Timothy Thurtle
Applicant
-and-
William Osler Health Centre and Carillion Services Inc.
Respondents
-and-
Canadian Union of Public Employees, Local 145
Intervenor
DECISION
Adjudicator: Naomi Overend
Indexed as: Thurtle v. William Osler Health Centre
APPEARANCES
Timothy Thurtle, Applicant Self-represented
William Osler Health Centre, Respondent Andrew Shaw, Counsel
Carillion Services Inc., Respondent Dan Shields, Counsel
CUPE, Local 145, Intervenor Susan Ballantyne, Counsel
Introduction
1This Application alleges discrimination with respect to employment because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). Specifically, this Application challenges the attendance management program, which the applicant asserts is discriminatory, then in operation at the two respondent work sites.
2The applicant is a member of the Canadian Union of Public Employees, Local 145 (“Local 145”), which is a party to collective agreements at both William Osler Health Centre (“William Osler”) and Carillion Services Inc. (“Carillion”). Local 145 was added as an intervenor in an earlier Interim Decision, 2010 HRTO 1908.
3In addition to the usual interest in such matters, Local 145 had also initiated a policy grievance against the attendance management program in place at Carillion. In the same Interim Decision in which Local 145 was added as an intervenor, the Tribunal also deferred consideration of this Application pending completion of the grievance process. In 2011, the parties to the grievance reached a settlement. Once the applicant became aware of it, he asked to have his Application reactivated. This was done by Interim Decision, 2012 HRTO 271.
4Following a mediation of this matter, in which the parties did not reach a settlement, the Tribunal issued a Case Assessment Direction, directing a summary hearing. On April 12, 2013, the Tribunal held a summary hearing by teleconference at during which it heard submissions on the following issues:
Whether the applicant, who is not an employee of William Osler, has standing to bring this Application against this respondent;
Whether the settlement of the policy grievance brought by the applicant’s bargaining agent appropriately dealt with the substance of the Application; and
Whether there is a reasonable prospect that this Application could succeed given the nature of the allegations brought by the applicant.
5For the reasons discussed below, I find that the Application was improperly brought against the William Osler Health Centre and that there is no reasonable prospect that the Application could succeed on the basis of the applicant’s allegations.
decision and analysis
Standing
6The applicant purports to bring the Application on behalf of a number of individuals, but is, in fact, the only applicant in this matter. In its Response, William Osler notes that the applicant is not an employee of it, but is rather employed by the other named respondent, Carillion.
7Although the applicant did not appear to challenge this assertion in his written material, at the summary hearing he took the position that he continues to be an employee of William Osler as well as Carillion for the following reasons:
His uniform and security badge both state William Osler;
He must report to the occupational health and safety centre at William Osler whenever there is an occupational health and safety issue;
He was originally an employee of William Osler, and he was never laid off when Carillion was created; and
He is not aware that there are two separate collective agreements in place.
8Both respondents and Local 145 state William Osler and Carillion are two entities with two distinct collective agreements, albeit with almost identical provisions. When Local 145 brought the policy grievance concerning the attendance management program at Carillion, the settlement reached covers only the workforce employed by Carillion. Employees at William Osler were not covered by the terms of the settlement.
9Moreover, the respondents brought my attention to a decision of the Ontario Labour Relations Board (“OLRB”), CUPE, Local 145 v. William Osler Health Centre, 2009 CanLII 24159, in which the OLRB declined to uphold Local 145’s application to have Carillion and William Osler declared a single employer. In the process of deciding the issue, the OLRB went through the history by which the bargaining unit was divided into two entities. At para. 16-20 it states:
The WOHC [William Osler], THICC [the consortium of which Carillion is a controlling member] and CSI [Carillion] represent themselves to the public as a single integrated enterprise.
In the Fall of 2007, employees working in the old Brampton site, and in food services and materials management in the Etobicoke site were terminated by WOHC and hired by CSI. These employees were either transferred to the new Brampton site or remained at the Etobicoke site.
At the time of hearing there were roughly 600 employees who remained employed by WOHC and 500 employed by CSI.
Article 20 of the collective agreement and Schedule 29 of the Project Agreement provides that THICC/CSI are bound by the collective agreement that was negotiated between the union and WOHC and must enter into an agreement with the union to that effect. Further, that THICC/CSI must recognize the service of former WOHC employees now employed by them and that all such employees must participate in the Hospitals of Ontario Pension Plan as they did as employees of WOHC.
These provisions have been honoured and all employees of THICC/CSI continue to be governed by the identical collective agreement, terms and conditions of employment that existed for them as employees of WOHC.
10On the basis of the above, I do not accept the applicant’s position that he is employed by William Osler. Accordingly, he does not have standing to challenge the attendance management plan in place for employees at that workplace.
Section 45.1
11The attendance management program in place at Carillion (the applicant’s employer) was challenged by Local 145 in a policy grievance referred to Arbitrator William Kaplan on November 11, 2009. It was settled by the parties to that grievance on April 21, 2011 on the basis of significant revisions to the wording of the program. Counsel for Local 145 and Carillion explained that the wording now reflects what they understand to be the requirements of the Code. On the face of the revisions, certain mandatory provisions have been replaced with discretionary language that allows for exceptions to the application of the program.
12Carillion urged me to find that s. 45.1 of the Code applied to this grievance. That is, it argued that the policy grievance was another proceeding that “appropriately dealt with the substance of the Application” and that I should exercise my discretion to dismiss on that basis.
13The parties were unable to point me to another case decided under s. 45.1 where the applicant was not a party to, or at minimum the subject of, the earlier proceeding. In this case, the applicant was not involved in this policy grievance, nor was he ever consulted on the outcome. Indeed, it appears he was not even aware of the fact that it had been settled or the nature of the changes to the attendance program at the time of the settlement.
14It is, however, unnecessary for me to determine whether, given those facts, s. 45.1 applies. During the course of the summary hearing, I asked the applicant to advise whether in light of the changes, he had any outstanding concerns. He pointed to the fact that the full-time employees are subject to more stringent requirements of proving their illnesses than part-time members of the bargaining unit.
15Apart from the fact that the distinction seems to be based on the fact that the group with the more stringent requirements is also the group entitled to be compensated when away from work due to illness, this distinction is not, on its face, based on any enumerated ground in the Code. The only other concern the applicant was able to point to, was possible privacy violations arising from having to provide the above-referenced medical proof-of-illness. In the absence of any other facts, the allegation that someone’s privacy is (or could be) violated is, likewise, not an infringement of a right under the Code.
16This case is not one in which there is a factual dispute between the parties. Indeed, the applicant has not asserted that he is a person with a disability, whose rights have been violated by the imposition of the attendance management program in place at Carillion. Even if he had standing to raise them, his theoretical concerns about the program (as revised by the settlement of the policy grievance) do not appear to raise concerns under the Code. In light of this, there is no reasonable prospect the applicant could succeed should this Application proceed to a hearing.
Order
17The applicant does not have standing to bring this Application against William Osler, nor does his Application have a reasonable prospect of success against the remaining respondent, Carillion. Accordingly, the Application is dismissed.
Dated at Toronto, this 13th day of May, 2013.
“Signed by”
Naomi Overend
Vice-chair