Robin Cooper v. City of Toronto, 2013 HRTO 9

Human Rights Tribunal of Ontario

B E T W E E N:

Robin Cooper Applicant

-and-

City of Toronto Respondent

-and-

Toronto Civic Employees’ Union, Local 416 Intervenor

DECISION

Adjudicator: Jennifer Scott Date: January 3, 2013 Citation: 2013 HRTO 9 Indexed as: Cooper v. Toronto (City)

APPEARANCES

Robin Cooper, Applicant Self-represented

City of Toronto, Respondent Kerri Kitchura, Counsel

Toronto Civic Employees’ Union, Local 416, Intervenor Dave Steele, 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”), alleging discrimination with respect to employment because of disability.

2The respondent City of Toronto (the “City”) brought a Request for Order During Proceedings (“RFOP”) on April 27, 2012 seeking a dismissal of the Application under s. 45.1 of the Code on the basis that the allegations of discrimination have been appropriately dealt with by Arbitrator Goodfellow in his decision of March 21, 2012. In the alternative, the City requests a dismissal of the Application because the allegations are either untimely or have no reasonable prospect of success. The RFOP was heard by teleconference on October 26, 2012, further to Interim Decision 2012 HRTO 1325 directing that a preliminary hearing be held to hear oral submissions on all of these issues.

BACKGROUND

3The applicant commenced seasonal employment with the City in 2005 in the Solid Waste Department as a driver/loader. In this position, he collected curb-side garbage and recycling. Accommodated work for driver/loaders was provided for under the Driver Loader Agreement, an agreement between the City and Toronto Civic Employees’ Union, Local 416 (the “Union”).

4In February 2009, the applicant had a workplace injury and was off work for 30 weeks. The applicant alleges the City failed to provide him with accommodated work from February 26 to September 23, 2009.

5On September 16, 2009, the applicant filed a grievance against the City alleging it had failed to accommodate his workplace injury. On September 23, 2009, the applicant was provided the modified work of truck washing and delivering calendars. The applicant alleges this work was unsuitable accommodation.

6On January 7, 2010, the applicant had surgery related to his injuries.

7In February 2010, driver/loaders were required to participate in the City’s work selection process due to the expiry of the Driver Loader Agreement. The work selection process provides seasonal workers with temporary work each year. The City first identifies jobs that need to be done and then allocates the jobs to employees by way of seniority. Within that process, provision is made for accommodating the needs of employees with disabilities. As a result of this change, workers who received accommodated work under the Driver Loader Agreement were no longer entitled to the work they had been performing.

8As a result, the applicant attended a work selection session on February 19, 2010. The applicant selected the position of Ticket Collector at the Rouge Valley Camp Ground, a 26-week contract position. The position was held for the applicant pending a written assessment (the “ticket taker test”) to verify that he possessed the necessary qualifications to perform the job. Once the applicant passed the ticket taker test, the City would then determine the accommodations that he required in that position. The Ticket Collector position ended in October 2010.

9On February 19, 2010, the applicant provided a return to work information form to the City that indicated he was unable to return to work, including to modified duties, for one year from February 2010.

10On March 3, 2010, the applicant advised the City that he would be unable to take the ticket taker test because it was unlikely his doctor would change his current work restrictions. On March 4, 2010, the applicant’s representative advised the City that the applicant was participating in a WSIB-approved medical rehabilitation program and that he was not in a position to participate in a return to work process. The applicant’s representative advised further that the applicant’s therapist had approved an additional six months of therapy. The applicant’s representative stated:

Mr. Cooper will therefore not write the test as requested tomorrow. This should not be considered a lack of cooperation on his part nor refusal of any kind. Based on all WSIB policies, an injured worker is not expected to participate in any return to work efforts at securing employment if not deemed partially disabled and considered capable of doing so.

11On March 8, 2010, a policy grievance was filed on behalf of the driver/loaders. The Union asserted the City breached the Code by discontinuing the accommodated work that had been provided to these workers under the Driver Loader Agreement and by failing to offer the same work in the work selection process.

12On March 14, 2010, the applicant was laid off by the City. Subsequently, the applicant entered into the Labour Market Re-Entry Program (“LMR”) through the Workplace Safety Insurance Board (“WSIB”) and returned to school.

13The applicant filed his Application with the Tribunal on January 12, 2011. The applicant alleges he was discriminated against by the City when it: (a) delayed providing accommodated work from February 26 to September 23, 2009; (b) provided unsuitable accommodated work from September 24, 2009 to January 6, 2010; (c) required him to attend the work selection meeting in February 2010 contrary to his doctor’s orders that he was unable to work; and (d) laid him off in March 2010.

14The applicant did not participate in the Work Selection process in February 2011.

15On March 21, 2012, Arbitrator Goodfellow released his decision on the policy grievance. He held the City had not discriminated against the workers by removing the work they had been doing under the Driver Loader Agreement because it was essentially “make work”. He held the tasks performed by the workers, with the exception of the watchperson, “did not qualify as any kind ‘position’ or, even, substantial portion of a position… and did not constitute any kind of efficient or economical way to have the work done”. He held the work performed by the workers was one task that formed an incidental part of a much larger job. In the case of the watchperson position, Arbitrator Goodfellow held the City was not required to continue to provide the workers with that position because it meant the City was employing “watchpersons to watch watchpersons”.

ANALYSIS

16The City requests the Application be dismissed on a number of bases: (a) the allegations of discrimination were dealt with by another proceeding under s. 45.1 of the Code; (b) the 2009 allegations are untimely under s. 34(1) of the Code; and (c) the 2010 allegations have no reasonable prospect of success under Rule 19A of the Tribunal’s Rules of Procedure.

Dismissal under Section 45.1

17Section 45.1 of the Code provides as follows:

45.1 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.

18The City argues the allegations in the Application were appropriately dealt with by Arbitrator Goodfellow’s decision. I disagree.

19The applicant alleges that he was discriminated against when the City delayed providing accommodated work from February 26 to September 23, 2009 and when it provided unsuitable accommodated work from September 24, 2009 to January 6, 2010 (the “2009 allegations”). These allegations preceded the removal of accommodated work in February 2010 due to the expiry of the Driver Loader Agreement. Therefore, it cannot be found that Arbitrator Goodfellow’s decision dealt with the applicant’s 2009 allegations.

20With respect to the remaining allegations in the Application, the applicant does not challenge the removal of the accommodated work he had been performing under the Driver Loader Agreement nor does he challenge the requirement that he participate in the work selection process per se. Rather, the applicant alleges he was discriminated against when he was required to participate in a work selection process in February 2010 when he was medically unable to work, including accommodated work. The applicant alleges that his March 2010 lay-off, which followed his failure to complete the work selection process in February 2010, was discriminatory. These allegations were also not dealt with by Arbitrator Goodfellow.

21Arbitrator Goodfellow dealt with a specific issue relating to the removal of the accommodated work in 2010 that had been provided to driver/loaders under the Driver Loader Agreement. He found the removal was not discriminatory because the work that had been provided was essentially “make work”. Arbitrator Goodfellow did not address the applicant’s 2009 allegations nor did he address the question of whether it was discriminatory to require an employee to participate in the work selection process when the employee is medically unable to work. These are the allegations in the Application and they were not addressed in Arbitrator Goodfellow’s decision of March 21, 2010.

Dismissal of 2009 Allegations for Delay

22Section 34(1) of the Code requires that applications be filed within one year after the incident to which the application relates or if there was a series of incidents, within one year after the last incident in the series. The applicant asserts the 2009 allegations were the first in a series of incidents that involve the same injury, the same people, the same division and the same issue, that being, the City’s failure to accommodate the applicant. The City submits the 2009 allegations are out of time.

23Section 34 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.

24The Tribunal has held that the word “series” in the phrase “series of incidents” under s. 34(1)(b) of the Code, refers to “a number of things or events of the same class coming one after another in spatial or temporal succession”. The Tribunal has also held that there must at least be some connection or nexus between the incidents that are alleged to form the series, and that a series cannot be comprised of incidents relating to discrete and separate issues. See Pakarian v. Chen, 2010 HRTO 457, at para. 25 and Baisa v. Skills for Change, 2010 HRTO 1621, at para. 22.

25In Touchette v. Ottawa Catholic School Board, 2012 HRTO 80 at para. 31, the Tribunal held an Application is not made timely simply because there is some form of interaction between an applicant and respondent in the year before it was filed. The Tribunal stated that “The fact that the events all occurred under the umbrella of the same organizational respondent does not in itself lead to a conclusion that they must form a ‘series of incidents’ within the meaning of section 34(1)”.

26In my view, the 2009 allegations of discrimination are separate and distinct from the 2010 allegations. The 2009 allegations relate to the City’s alleged failure to provide appropriate accommodated work or any accommodated work at all. The 2010 allegations relate to the requirement to participate in a work selection process when the applicant was unable to return to work. The issue of accommodated work never arose in 2010 because the applicant did not complete the work selection process. Because the 2009 allegations are separate and distinct from the 2010 allegations, they are untimely. The issue is whether the Tribunal can hear the 2009 allegations in light of the delay.

27The Tribunal does not have jurisdiction to consider claims filed more than one year after the last incident of discrimination, or the last in a series of discrimination, unless the delay in filing was incurred in good faith and no substantial prejudice will result to any person affected by the delay. As stated by the Tribunal in Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241 at para. 24, “the Code requires an individual to act with all due diligence, and file their application within one year, when they may seek to pursue a human rights claim”. When filing outside this one-year time limit, it is incumbent upon the applicant to provide the Tribunal with an explanation as to why he did not pursue his rights under the Code in a timely manner.

28The applicant advised the Tribunal that the reason he delayed filing the Application was that he learned of the timeline for doing so while attending the LMR program. The Tribunal finds the applicant has not provided a reasonable good faith explanation as to why he did not pursue his rights under the Code in a timely manner. The applicant was sufficiently concerned about the alleged failure of the City to provide accommodated work in 2009 to file a grievance. Within days of filing the grievance, the applicant was provided accommodated work which he alleges was unsuitable. At that time, he had good reason to make inquiries about his rights as they relate to the Code and he did not do so. Had he made inquiries, he would have learned of the one-year time period to file an application under the Code.

29In the circumstances, I am not convinced that the applicant has provided a reasonable explanation for the delay in filing the Application. I find that the delay was not incurred in good faith and therefore the 2009 allegations do not fall within the Tribunal’s jurisdiction. In light of this finding, it is not necessary to address the question of prejudice. Accordingly, the 2009 allegations are dismissed as being out of time.

The 2010 Allegation Has No Reasonable Prospect of Success

30The City seeks a dismissal of the 2010 allegations on the basis that they have no reasonable prospect of success. The test for determining reasonable prospect of success is set out 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.

The issue in this case is whether the 2010 allegations amount to a Code violation in law.

31During the teleconference with the Tribunal, the applicant advised that he could have returned to work in August 2010, prior to the expiry of the Ticket Collector position. He did not advise the City of this fact. The return to work information provided to the City on February 29, 2010 indicated that he was unable to return to work, including modified duties, for one year. In March 2010, the applicant’s representative advised the City that the applicant was participating in a rehabilitation program and was undergoing additional therapy until September 2010. Even accepting the applicant’s statement during the teleconference that he could have returned to work in August 2010, it would have been close in time to the expiry of the Ticket Collector position. The applicant did not participate in the work selection process in February 2011 and it appears he was attending school as part of the LMR program at that time.

32It is not disputed that the applicant was unable to work during the term of the Ticket Collector position in 2010 either because of medical restrictions or because he was in a retraining program attending school. It is impossible to accommodate someone in the workplace who is unable to work. In legal terms, there is no duty to accommodate an employee who cannot work. For this reason, the 2010 allegations are dismissed because they have no reasonable prospect of success.

33The Application is dismissed. The 2009 allegations are out of time and the 2010 allegations have no reasonable prospect of success.