Gwyn v. Toronto (City), 2013 HRTO 922

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Randall Gwyn Applicant

-and-

City of Toronto -Toronto Fire Services Respondent

AND B E T W E E N:

Randall Gwyn Applicant

-and-

Toronto Professional Firefighters’ Association Respondent

DECISION

Adjudicator: Kaye Joachim Date: May 28, 2013 Citation: 2013 HRTO 922 Indexed as: Gwyn v. Toronto (City)

APPEARANCES

Randy Gwyn, Applicant ) Farah Malik, Counsel City of Toronto, Respondent ) Ian Solomon, Counsel Toronto Fire Fighters Association ) Howard Goldblatt, Counsel

1These Applications were filed under section 53(5) of Part VI of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The complaints which underlie the current Applications were filed with the Ontario Human Rights Commission (“Commission”) on March 8, 2008. The applicant alleges that he is being discriminated against on the basis of disability because the strict application of the collective agreement effectively prevents him from achieving the rank of Captain in the Operations (Fire Suppression) Division.

Chronology of Events

3The applicant began working as firefighter in the Operations (Fire Suppression) Division in September 1990.

4In 1996 he was offered a secondment in the Training Division which he refused.

5On January 1, 1998 the amalgamation of cities into the Greater Toronto occurred. This necessitated the negotiation of five previous collective agreements into a single agreement. The details of the agreement were to be settled by interest arbitrator Teplitsky.

6Until that time, the applicant continued to be governed by the terms of the City of Toronto agreement then in existence. In accordance with that agreement, in order to be promoted to the position of Captain in Operations, a firefighter had to have 12 years of employment with the City, with the last two years of work in Operations in order to sit for the Captain’s examination. Candidates who passed the examinations were placed on the list in accordance with seniority and were promoted when a Captain position became available. If the candidate had not been appointed by the next competition, the list was replaced following a new competition.

7In October 1999, the applicant became ill with an initially undiagnosed condition, which was subsequently diagnosed as rheumatoid arthritis. He was able to return to work April 3, 2000 but not as a firefighter. He was accommodated by being given temporary duties in the Training Division, although his official position remained in Operations.

8A competition for Captains was posted in March 2000 and closed April 2000; the applicant was not eligible to apply as he did not have 12 years of service, as required by the City of Toronto agreement.

9Also in the spring of 2000 a competition was held in Training for training officers and Training Captains. The applicant applied and was successful. On June 28, 2000 he was made a Captain in the Training Division. This is the crucial event that led to the subsequent alleged discriminatory effects. By leaving the Training Division he was no longer eligible to apply for a position as Captain in Operations, in light of the requirement that the last two years of employment prior to the competition must be in Operations.

10On September 12, 2000 arbitrator Teplitsky issued his decision settling the terms of the collective agreement. With respect to promotions for Captains, the new requirement was 10 years of service, the last two years in Operations and successful completion of the examination. This list would be maintained, and when new competitions were held, the successful candidates were placed, as a group, below the existing candidates who had not yet been promoted. As a result, the list of potential Captains grew longer until it was standard that candidates would remain on the list for years before an opportunity arose.

11In February 2001 a competition for Captains in Operations was posted. The applicant was not eligible as he was not in Operations.

12In February 2006 the applicant’s medical condition became sufficiently controlled that he was able to return to Operations as a firefighter.

13In April 2006 the applicant contacted the union to discuss what he perceived as the unfair effect on him of having moved out of Operations in 2000. When these discussions were not fruitful, he filled a grievance in May 2006. The union declined to take the grievance forward.

14In March 2008, having worked two years in the Operations Division, he applied to get on the Captain’s list. At this time he was told that his qualifications with the Ontario Fire College were not acceptable, as the requirements had changed.

15The applicant alleges that the strict application of the terms of the collective agreement relating to promotions in Operations had a discriminatory effect on him, because he transferred to Training as a result of his disability. The result is that the applicant missed the first opportunity to apply to become a Captain in Operations in February 2001 and is now more than a decade behind his cohorts who applied in 2001.

16He seeks to be placed on the Captain list as though he had applied in 2001.

The Transfer to Training

17The key to the alleged discrimination lies in the applicant’s transfer to the Training Division in June 2000. At that time, the applicant was ill with an undiagnosed condition. He did not know when, if ever, he would be able to return to firefighting. The temporary work in Training appeared to be coming to an end, as permanent training officers were to be hired shortly. The work in Training was particularly suitable for the applicant as he had a nursing background and the training division was preparing a manual and checking on defibrillators. The District Chief in the Training Division encouraged the applicant to apply for a position in Training.

18At that time, the applicant testified that he felt he had no choice but to apply for a permanent position outside the Operations Division for the following reasons:

His medical condition was undiagnosed and his recovery was unpredictable;

He did not believe he would be accommodated in Operations indefinitely;

As long as he was being accommodated, his spot in Operations would be maintained and he was told that he was keeping that spot from someone else;

Based on the language of the collective agreement prior to the Teplitsky award, he thought that new lists would be created for every competition, so that should he be able to return to Operations, he would be able to apply and be placed on a new list; he was specifically advised by a union official that he should govern himself in accordance with the existing collective agreement.

19The applicant submits that he was essentially forced to apply for a position outside Operations.

20The applicant offered the following evidence that he could not have reasonably known that he could remain officially in Operations indefinitely while being accommodated in Training. The applicant testified that there was an expectation that disabled officers would eventually be moved off the modified duty list. However, he could not explain the basis of that expectation. I am satisfied that no such expectation existed. The applicant testified that he knew of a colleague who was not accommodated indefinitely. The applicant was offered the opportunity to call this witness but did not do so. I draw an adverse inference from the failure to call this direct evidence of a failure to accommodate. The District Chief in Training in 2000 testified that modified duties were always temporary. However, he could not point to a specific example of anyone being forced to leave their Division. This evidence was contradicted by several of the respondents’ witnesses. I will discuss their evidence shortly. I prefer their evidence as their positions required them to make decisions regarding accommodation, while the applicant’s witness’s position did not.

21The applicant also pointed to the language of the collective agreement in place at the time, which stated that the situation of a person on modified work would be reviewed every 4 to 6 weeks. He argued that this language does not suggest long term accommodations lasting for years. I find that the language does not determine the issue of whether long term accommodation was available to the applicant. It is consistent with a practice of permitting long term accommodation, with regular updates.

22I heard from a retired police chief and a retired deputy police chief who worked with the previous City of Toronto. They testified that there was no policy, practice or collective agreement provision that limited the length of time a firefighter could remain on accommodated duties outside of the Operations Division. They identified three specific firefighters who were accommodated outside of Operations for years. One of them applied, while outside the Operations Division, for a captain position. He was successful and held the official position of Acting Captain while being accommodated in another Division. They also testified that no firefighter had ever been forced out of Operations due to the length of time they required accommodation. A senior union official gave corroborating evidence. I prefer the evidence of the respondents’ witnesses who were in a position to know about the practices and policies of the old City of Toronto at the time the applicant made his decision to apply for a position in Training. I am also mindful of the fact that the applicant did not make any inquiries to his union or to his employer about the potential for being accommodated long term in Operations. Rather, just 10 days after returning to work, he applied to move out of Training. This does not indicate that the applicant had any reasonable basis for concluding that he would not be accommodated indefinitely outside the Operations unit, while officially keeping his position in Operations.

23I find that the applicant ought to have reasonably known or made inquiries about his potential to remain in Operations indefinitely, while being accommodated in an alternative position in another Division.

24Accordingly, I find that the applicant was not forced to move out of Operations in June 2000.

25Alternatively, the applicant submits that, but for his disability, he would not have transferred out of Operations. I accept the applicant’s evidence on this point. The applicant had previously been offered a transfer to Training which he had refused, demonstrating his commitment to Operations. However, the test for discrimination is not satisfied by this “but for” analysis.

26The applicant’s motives, while subjectively and objectively reasonable given his disability, do not determine whether discrimination has occurred. A person with a disability will make many life choices which are strongly influenced by his or her disability. That does not make the consequences of that choice discriminatory.

27I conclude that the applicant has not made out a prima facie case of discrimination on the basis of disability.

28There was an allegation that the failure to treat the applicant’s Ontario Fire College qualifications as equivalent to the new requirements under the 2008 Collective agreement was a form of reprisal. This allegation was not seriously pursued and the evidence did not demonstrate any intention on the part of the respondents to punish the applicant for filing an Application.

29The Applications are dismissed.