HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
John Nahirny
Applicant
-and-
Liquor Control Board of Ontario, Ontario Public Service Employees Union,
Bob Peter, Bob Clevely, Rafik Louli, Ron Scarcello, Michael Keats and Ray Bourque
Respondents
INTERIM DECISION
Adjudicator: David Muir
Indexed as: Nahirny v. Liquor Control Board of Ontario
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, family status and reprisal. This Interim Decision deals with a deferral issue raised by the Tribunal as well as responding to a renewed Request for Interim Remedy (Rule 23) filed by the applicant.
2The applicant is an employee of the organizational respondent. He cares for elderly parents and has requested accommodation for this purpose. In the context of a prior grievance related to this issue the parties entered into Minutes of Settlement which made provisions for the applicant’s family care needs. A central issue in this case is the applicant’s alleged need for family status accommodation by the respondent employer – that is the care needs of his elderly parents require certain accommodations of the respondent employer. The applicant has filed a significant number of grievances related to a number of issues, several of which it appears to be agreed include the question of the applicant’s need for family status accommodation in order to provide care to his parents.
3With his Application filed on October 29, 2013 the applicant also filed a Request for Interim Remedy (Form 16). The Request was incomplete in that the applicant has not provided all of the materials required to support such a Request. However, a letter from his family physician was filed and reviewed. The Request was dismissed in 2013 HRTO 1845.
[10] On February 4, 2014 the applicant filed a renewed Request for Interim Remedy raising essentially the same issues. The respondent LCBO was directed to respond to the Request and has done so. Subsequent to a February 6, 2014 CAD on February 18, 2014 related to the applicant’s Request the applicant filed a Request for Order During Proceeding seeking an extension of time to file a response to the respondent employer’s submission on the Request for Interim Remedy. The applicant then filed those submissions on February 20, 2014 before the respondents had an opportunity to respond to this latest request. In any event I have reviewed those submissions in dealing with the issues below.
The Request for Interim Remedy
[11] The Request for Interim Remedy is essentially the same as the one denied in 2013 HRTO 1845 and this Request is denied as well for largely the same reasons.
[12] Rule 23 of the Tribunal’s Rules of Procedure provides in part as follows:
23.1 An Applicant may request that the Tribunal order an interim remedy in an Application. A Request for an Interim Remedy must be made in Form 16. If the Request is made at the same time the Application is filed, it need not be delivered to the other parties. If it is made at a later stage, it must be delivered to the other parties and filed with the Tribunal.
23.2 The Tribunal may grant an interim remedy where it is satisfied that:
a) the Application appears to have merit;
b) the balance of harm or convenience favours granting the interim remedy requested; and,
c) it is just and appropriate in the circumstances to do so.
[13] My reasons from the Interim Decision 2013 HRTO 1845 are reproduced here:
4In TA v. 60 Montclair, 2009 HRTO 369 at para. 23, the Tribunal held that the fundamental consideration in determining whether to award an interim remedy is:
whether an interim remedy is necessary to facilitate and ensure the Tribunal is able to award a complete, appropriate and effective remedy at the end of a hearing, should a violation of the Code be found.
5The Tribunal in TA v. Montclair, above, also noted that an applicant seeking an interim remedy will have a significant onus to meet to demonstrate that the Request meets the three elements in Rule 23.2 and is necessary to further the remedial objects of the Code. See also Kwan v. Hospital for Sick Children, 2009 HRTO 621.
6The applicant makes several allegations of failure to accommodate his disability-related and family status needs. However the basis for his Request arises from the following circumstances. Further to a number of grievances filed by the applicant, a settlement was negotiated between the applicant and his employer, the respondent LCBO. As part of the settlement it was agreed that the applicant could work in three LCBO locations, Store #2, 8, or 15, all of which were close to the applicant’s home where he lives and cares for his mother who is quite ill. This appears to have been an accommodation for the applicant’s need to sometimes return home during his shift to attend to his mother. The settlement had been in place for several years with the applicant working in Store #2 which perhaps not coincidentally is closest to his home.
7A conflict arose between the applicant and a member of management in store #2 about an accommodation for the applicant’s disability-related needs following an accident. Essentially the applicant alleges that he was being asked to perform tasks beyond his restrictions. The applicant makes a number of allegations with respect to this dispute which are not material to the Request.
8Not long thereafter the applicant was advised that he was being transferred to store #8, which is somewhat farther from his home than store #2, but I note was one of the three stores where it was agreed that the applicant could work as an accommodation for his need to attend to his mother from time to time during work hours.
9The interim Remedy the applicant seeks is to be returned to store #2 pending the hearing of the merits of this case. He also seeks an order the he not be assigned to the same shift as the Assistant Manager and that he not take direction from this individual.
10I am not satisfied that the applicant has met the significant onus of establishing that his Request meets the criteria in Rule 23.2 and is necessary to further the remedial objects of the Code. I have come to this conclusion because it is not clear that this Application as it relates to the transfer has merit. I observe that the applicant has been transferred to a store which he agreed would be acceptable and would be an appropriate accommodation. The applicant complains that the decision appears to have been arbitrary and done without consultation, however he does not assert that despite his agreeing that he could work in this location in the past it is no longer an acceptable accommodation. As regards the request that he not be assigned to the same shift as the assistant manager and not be required to take direction from him, it is not clear how this issue relates to Code claims.
11I am also not satisfied that the balance of harm or convenience favours granting the Request. It is not clear why the respondent employer chose to transfer the applicant, but based on the applicant’s submissions it is not clear why it did not have the right to do so. Most importantly I am not satisfied that it would be fair and just to grant the Request as the applicant has articulated no reasons why the interim remedy he seeks is necessary to further the remedial purposes of the Code. In that regard I have reviewed the note from the family physician who is treating the applicant’s mother and it is insufficient to support this Request. It is not clear from the note how conversant the physician is with the circumstances and it does not appear that the physician understands that the applicant had previously agreed that working in store #8 would be an acceptable accommodation. More importantly the note does not suggest that the physician knows where the applicant is to be assigned and does not state that this location is no longer an appropriate accommodation.
[14] Despite being made aware of the deficiencies of his first Request the applicant has not filed the statutory declarations of a person familiar with the facts surrounding the Application in this second Request. The LCBO respondents have complied with these requirements. As such the respondent employer has presented a factual matrix of some assistance in considering the current issue.
[15] The applicant relies on a number of documents some dating back to 2003 which although the applicant appears to assert that they speak for themselves they do not. He also makes a great number of allegations about the respondents but as indicated has failed to provide the statutory declarations as required and as such it is unclear how much of this material relates to his Request. The applicant does rely on some new medical information which although more forceful than the earlier medical information provided in this process, having reviewed it I am not satisfied it is sufficient to meet the threshold for an interim remedy.
[16] I note that the respondent employer’s submissions and declarations raise questions about the approach of the applicant to this issue. I observe that it appears that the applicant has not been participating in the accommodation process as it relates to his current work assignment. So for example the LCBO respondents assert supported by the statutory declaration of Ron Scarcello that the applicant would not communicate with his employer about the issues related to the workplace accommodation dispute and did not provide the respondents with the August 5, 2013 letter from his family physician which suggests that it would be preferable if the applicant was placed closer to his home. The LCBO respondents argue that the applicant is attempting to circumvent the accommodation process by bringing his issues to the Tribunal before raising them with his employer. I agree that if this is indeed what has occurred it is inappropriate.
[17] I also note that the applicant is currently off work on a medical leave and to that extent his placement in one store or the other may be moot at this stage.
[18] Most importantly I am not satisfied that the materials filed by the applicant in particular the additional letters from his family physicians upon which he relies have really changed anything in terms of the merits of the case. While more forceful in their articulation of the position taken by the applicant they are insufficient on their own to meet the standard required at this stage. That does not mean that they do not provide important information which might be helpful in the accommodation process which ought to be ongoing between the workplace parties. But on their own they are insufficient to establish a prima facie case of a Code violation that would allow the Tribunal to intervene on an interim basis. Nor do they on their own establish that there is in fact a particular urgency to this issue or significant risk in the status quo being maintained pending the resolution of the underlying dispute in this case. I also observe on this point that some of the assertions made in the declarations of the LCBO respondents raise doubts about the urgency and need associated with the Request. Accordingly for the reasons articulated earlier and above the Request is denied.
Deferral
20The Tribunal may defer consideration of an application, on such terms as it may determine, and on its own initiative (Rule 14.1). The Tribunal has stated that deferral is not automatically invoked simply because the parties are involved in other legal proceedings. It is a discretionary measure that the Tribunal exercises on the basis of the circumstances in each case. Absent good reason, applicants and respondents before the Tribunal are entitled to expect the Tribunal to take timely action to resolve complaints of discrimination brought before it.
21However the Tribunal has generally deferred applications where there is an ongoing grievance under a collective agreement based on the same or similar facts and human rights issues. In explaining this approach, the Tribunal has referred to the fact that the Supreme Court of Canada has affirmed that grievance arbitrators have not only the power but also the responsibility to implement and enforce the substantive rights and obligations of human rights and other employment-related statutes as if they were part of the collective agreement (Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42).
22The Supreme Court has confirmed that human rights tribunals are not the only decision-makers that can decide human rights claims. Where the parties are already engaged in a concurrent legal proceeding in which they are raising some or all of the same human rights issues before a decision-making body with the authority to make determinations about those issues, the orderly administration of justice favours deferral to the other proceeding. In such a scenario, the Tribunal’s normal approach is to defer to the other proceeding.
[19] The LCBO respondents argue that this Application should be deferred pending the conclusion of a number of grievances which raise similar and to some degree overlapping issues with the Application.
[20] The applicant disagrees and argues that the several grievances he has filed have nothing to do with the current Application.
[21] The applicant’s position clearly overstates the case and in fact he has conceded on numerous occasions that several of the grievances raise the issue of his need for family status accommodation and the alleged violation of this need by the respondents in various ways. The applicant argues that he intends to rely on these prior factual circumstances as “similar fact evidence”. Whether or not it would be appropriate to consider such evidence in an eventual hearing of this case it seems to me unassailable that some of the grievances relate to his family status accommodation issues and that the extent of such a need if any will be an issue in one or more of his grievances.
[22] I accept the applicant’s submission that some of the particular issues raised in this Application such as whether the respondent employer failed to accommodate the applicant’s family status needs by transferring him from store #2 to store #8 is not squarely raised in a grievance however that is not determinative of this issue.
[23] In my view it is appropriate to defer this Application pending the completion of the multiple grievance arbitrations which are ongoing. I come to this conclusion for a number of reasons. First while it is fair to say that some of the particular allegations raised in this Application will not be adjudicated (although they may be) in the grievance arbitration the central underlying question of whether or not the applicant has a family status accommodation need is inherent in several if not all of the grievances he has filed. It is impossible to imagine the resolution of some of these grievances without a consideration of what the applicant’s accommodation needs are in fact. It seems to me clear that the fact that there are one or more grievances pending alleging violations of his family status needs raises all of the concerns of fairness, economic use of public and private resources and the possibility of inconsistent determinations of this underlying issue that engages the question of whether deferral of an application is warranted.
[24] I also note that these grievances were filed long before the current dispute and this Application.
[25] For these reasons this Application is deferred pending the conclusion of the various grievances and the summary hearing is cancelled.
23The Tribunal directs the parties’ attention to Rules 14.3 and 14.4 which outline the procedure by which the Application may be brought back on after the conclusion of the grievance process.
Other Matters
[26] In his submissions the applicant has begun to make sarcastic and inappropriate comments about the respondents and their counsel. The applicant is reminded of the Tribunal’s expectation reflected in its Rules that the parties treat the other parties with respect and courtesy. The applicant is reminded of the Tribunal’s Rule 1.12.1:
All materials filed with the Tribunal must be courteous and respectful of the Tribunal and other participants
[27] In Cochrane v. Workplace Safety and Insurance Board, 2010 HRTO 913 at paras. 8-9, the Tribunal stated as follows:
Parties to a Tribunal application are engaged in a dispute which has been brought before the justice system. Before the Tribunal, as in courts and other tribunals, each side is entitled to access these dispute resolution processes, and may make submissions supporting their point of view. The Tribunal’s process provides access to a fair and neutral decision maker, who decides the application based upon his or her findings of facts and law as they apply to a particular case.
It is understandable that parties may have strong feelings about the events that gave rise to the dispute. They may disagree strongly with the submissions made by each other, be upset about the fact that the matter is before the Tribunal, or disagree with decisions made by the adjudicator. Parties and their representatives are required, however, to conduct themselves in the Tribunal’s process with courtesy and respect for each other and the Tribunal. While it is proper to express disagreement with another party’s submissions or evidence, it is never acceptable to descend into personal insults, the use of uncivil language, or discriminatory comments.
11The Tribunal has the power, pursuant to s. 23(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, as amended (“SPPA”), to make such orders or give such directions in proceedings before it as it considers proper to prevent abuses of its process including the dismissal of an Application in extreme cases.
24As previously noted while it appears that the applicant is not currently at work because of a medical leave the accommodation process is ongoing although it may be that the applicant has ceased to participate in it. The respondent employer has also taken exception to what it perceives to be the applicant’s attempt to circumvent the process with this Application as well as what it perceives to be the Tribunal’s acquiescence in that attempt. So for example the respondent employer states that while it has requested medical information from the applicant this information has not been provided to it directly but received it buried in voluminous documentation in relation to the interim disputes in this case. I agree with the respondent employer that it is not the role of the Tribunal at this stage to intervene in the accommodation process other than by its decision making authority. The obligation to participate in the process and a failure of any party to participate in good faith may have consequences in terms of remedy should a violation of the Code be found to have occurred.
Orders
25The Tribunal makes the following Orders:
a. The Request for Interim Remedy is denied,
b. The Application is deferred pending the resolution of the applicant’s various grievances before the Grievance Settlement Board and the Summary Hearing is cancelled.
26I am not seized of this case.
Dated at Toronto, this 6th day of March, 2014.
“Signed by”
David Muir
Vice-chair