HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Robert Daykin
Applicant
-and-
Ford Motor Company of Canada, Limited
Respondents
INTERIM DECISION
Adjudicator: Daniel Randazzo
Indexed as: Daykin v. Ford Motor Company of Canada
APPEARANCES
Robert Daykin, Applicant ) Cynthia Milburn
Ford Motor Company of Canada, Limited ) Holly Reid, Counsel
Respondent )
1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the "Code"), on March 28, 2011 alleging discrimination with respect to employment on the basis of disability and reprisal. The Application was deferred in 2011 HRTO 1294 pending the conclusion of the grievance arbitration process. In 2012 HRTO 1729 the Tribunal granted the applicant's request and reactivated the Application.
2By Case Assessment Direction ("CAD") dated May 31, 2013, the Tribunal directed that a Summary Hearing be held in this matter by teleconference. It stated as follows at paragraph 10:
The respondent's Request for Summary Hearing is granted. A summary hearing will be held to determine whether this Application should be dismissed, in whole or in part, on the basis that there is no reasonable prospect that the Application, or part of the Application will succeed.
The summary hearing will also address whether this Application should be dismissed, in whole or in part, on the basis that another proceeding has appropriately dealt with the substance of the Application, or on the basis of abuse of process.
The applicant's materials filed February 12, 2013
3On February 12, 2013 the applicant filed a Request for Order During Proceedings which included various documents and written submissions. In the circumstances, it was not clear to the Tribunal if the applicant was also seeking to amend his Application. The CAD directed the applicant, within 14 days of the CAD, to confirm in writing if he was seeking to amend his Application. The CAD states:
If the applicant is requesting that his Application be amended in any way, he is directed to confirm this in writing to the respondent and the Tribunal, within 14 days of the date of this Case Assessment Direction. If he is requesting that his Application be amended, he must also clearly explain what amendments he is seeking. If the applicant seeks to add new allegations to his Application, he must concisely set out in writing what each new allegation is, who was involved, and when and where it happened within 14 days of the date of this Case Assessment Direction
4The applicant has not advised the Tribunal that he was seeking to amend his Application. I therefore dismiss the applicant's Request for Order During Proceedings. The applicant's written submissions as contained in the applicant's February 12, 2013 material do not form part of the Application.
5Further, I note that the applicant in his verbal submissions made at the summary hearing referenced various events and allegations occurring in 2013, including but not limited to October 2013. The 2013 events and allegations referred to by the applicant during the summary hearing do not form part of the applicant's Application.
6A summary hearing was held via teleconference on December 16, 2013. The Tribunal heard submissions from the applicant, his representative and from counsel for the respondent.
7I have concluded that the allegations raised in the Application which are alleged to have occurred prior to November 4, 2010 (the date of the applicant's grievance) are dismissed on the basis of abuse of process. I have also concluded that all but three of the allegations which are alleged to have occurred between the dates of November 5, 2010 and January 31, 2012 (the dates of events referenced in the applicant`s Reply) are to be dismissed on the basis that there is no reasonable prospect of success. The allegations that the respondent required the applicant return to an IME, that the respondent demanded a copy of a lab report with respect to the applicant's medications and blood test and the allegation that the respondent refused to grant the applicant a straight day shift until he returned to the IME are not dismissed, but the parties are directed to provide further documentation and submissions.
BACKGROUND
8The applicant commenced employment with the respondent on July 30, 1996. At all times during his employment with the respondent, the applicant has worked in a unionized environment, represented by the National Automobile, Aerospace, Transportation, and General Workers Union of Canada, Local 707 ("the Union"). The respondent and the Union were, at all material times, parties to a collective agreement.
9The applicant has epilepsy, a disability of which the employer is aware. The factual basis of this Application arises as a result of the applicant's claim that the respondent has failed or refused to accommodate his disability.
10The applicant states that on September 24, 2010, while he was on medical leave, he provided the respondent with a note from his neurologist which indicated that, due to his epilepsy, he should be placed on a straight day shift. On October 5, 2010 he obtained a note from his family doctor which stated that he was able to return to work on October 7, 2010. The applicant returned to work on October 8, 2010 (he missed a day due to a personal non-medical issue). On October 12, 2010 the respondent's doctor requested further medical information to justify the requested "straight day shift" accommodation. The applicant was requested to sign a consent to release personal health information; however the applicant refused to sign. As a result of the applicant's refusal, the respondent sent the applicant home. The following weeks resulted in discussion between the applicant, his union and doctor and the respondent. Eventually, on November 4, 2010 the applicant filed a grievance which stated:
I the undersigned do hereby grieve that the Ford Motor Company has unjustly refused to accommodate my medical restriction since October 8, 2010. I ask that the practice stop and I be made whole.
11Between November 4, 2010 and January 31, 2011 there were a series of conversations and exchanges of information relating to the applicant's accommodation request. These conversations and exchanges are not set out in the applicant's Form 1 (Application) but are referenced in the applicant's Form 3 (Reply). For the purpose of this summary hearing I have accepted that the statements in the applicant's Form 3 (Reply) form part of the allegations against the respondent.
12In his Form 3 (Reply), the applicant states that he was requested by the respondent's doctor to undergo an Independent Medical Exam ("IME") to which he eventually agreed. The applicant acknowledges that he was asked, but declined, to return to the IME for further tests. The applicant claims that the respondent demanded a copy of a lab report relating to the applicant's medications and blood test. The applicant claims that this request was contrary to the Code. The applicant also states that on December 2, 2010 he was berated by a supervisor (Christian Masotti) for leaving the line to use the bathroom. The applicant claims that the actions of the supervisor were contrary to the Code. Finally, the applicant states that on January 25, 2011 he was refused a copy of his discipline file. At some time shortly thereafter, he had a meeting with David Nangini, Labour Relations Supervisor for the respondent, and Mark Brennan, a representative from the applicant's Union, at which time he alleges that he was "talked down to" and advised that he would not get straight shifts until he went back to the IME.
13In his submissions at the summary hearing the applicant maintained that the allegations gave rise to a violation of the Code. The applicant indicated that he would be able to prove the acts of discrimination and reprisal through the documents that were in his possession, but not yet produced, and through the respondent's documents. It was pointed out to the applicant that the CAD of May 31, 2013 directed the parties to file any further documents and case law the parties intended to rely upon. The applicant suggested that he was advised not to file his documents but was ready to do so.
14With respect to the grievance that was filed on November 4, 2010 and its subsequent settlement, the applicant acknowledged that the grievance was about the applicant not being permitted to return to work and because of the medical information the respondent requested which the applicant believed to be excessive.
15With respect to the settlement of the grievance, the applicant argued that the settlement only dealt with a "four day issue" (i.e. that the grievance only related to a four day period when the applicant was denied a day shift and not to the entire period) and not the over-arching issues of accommodation and discrimination.
16The respondent argued the applicant's claim relates to allegations of general unfairness in the workplace. There is no nexus or link between the applicant's allegations and a violation of the Code. The respondent argued that it was clear from the material that the applicant had refused to participate in the accommodation process and that at all times the respondent was willing to accommodate, and had in fact accommodated, the applicant.
17With respect to the grievance and its subsequent settlement, the respondent argued that the grievance dealt with the same subject matter as the Application. It was settled by the applicant's union on his behalf. He may not have signed the minutes of settlement but he did receive the proceeds of the settlement. I note that the applicant produced what appears to be a receipt verifying that he received proceeds of the settlement from his Union.
DECISION
18The Summary Hearing was held to determine:
If the application should be dismissed because there is no reasonable prospect of success.
If the application should be dismissed, in whole or in part, pursuant to section 45.1 of the Code or on the basis of abuse of process.
ABUSE OF PROCESS
19The Tribunal has the jurisdiction to consider on a preliminary basis whether or not some or all of an application ought to be dismissed based on abuse of process. Section 23(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 as amended, provides that a tribunal may make such orders or give such directions as it considers proper to prevent abuse of its processes.
20The Tribunal has held that the doctrine of "abuse of process" can apply in a variety of circumstances in which the Tribunal determines that it would be unfair to permit an application to continue. The circumstances that can give rise to an "abuse of process" are not finite and may include, but are not limited to, circumstances such as delay, re-litigation, settlement, as well as certain issues of procedural unfairness. In attempting to preserve and promote judicial economy, consistency and finality, the focus of the doctrine of "abuse of process" is on the integrity of administrative justice. See Campbell v. Toronto District School Board, 2008 HRTO 62, citing Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63.
21The Tribunal's jurisprudence establishes that proceeding with an Application may constitute an abuse of process when the parties have previously settled the subject-matter of the Application. See Campbell, supra; Messiah v. Snap-on Tools of Canada, 2010 HRTO 1151; Zu v. Hamilton (City), 2010 HRTO 2461; and Holowka v. Ontario Nurses Association, 2010 HRTO 2171. As recognized by the Tribunal in Dunn v. Sault Ste. Marie (City), 2008 HRTO 149, at para. 35, "[t]here is a strong public interest in ensuring that when parties freely choose to resolve the substance of a human rights dispute, in whatever form it is brought, the matter is at an end."
22The applicant's grievance filed on November 4, 2010 states in its entirety:
I the undersigned to hereby grieve that the Ford Motor Company has unjustly refused to accommodate my medical restriction since October 8, 2010. I ask that the practice stop and I be made whole.
23The applicant acknowledged in his submissions at the summary hearing that the grievance was about the applicant not being permitted to return to work and because of the medical information the respondent requested which the applicant believed to be excessive. There is no doubt that the grievance raised and was intended to deal with the issues of discrimination and accommodation. The applicant, however, argues that the settlement of the grievance dealt only with a "four day issue", which I note is not particularized or mentioned in the grievance itself. The respondent argues that the settlement encompasses the entire grievance, including the issues of discrimination and accommodation, which are the very same issues that are raised in the Application.
24It is clear that the grievance raised the same issues that were also raised in the Application. It is also clear that the allegations raised in the grievance are based upon the same facts as the allegations raised in the Application.
25I find that the settlement of the grievance constitutes a settlement of the allegations raised in the Application. The Tribunal was not provided with a copy of the Minutes of Settlement but was provided with a letter dated May 16, 2012 from Gary Beck, President C.A.W. Local 707 which states:
To Whom it May Concern:
This is to inform you that Rob Daykin's grievance #K40599 was settled on April 12, 2012.
Yours truly,
Gary Beck
26There is nothing that suggests, other than the applicant's statements, that the settlement was anything less than the settlement of the grievance in its entirety. I note that the applicant's statements to the effect that the settlement pertained to a four day issue were unsubstantiated by any documentation. I find that the settlement as communicated by the May 16, 2012 letter settled those allegations raised in the Application that occurred on or before November 4, 2010 and that it would be an abuse of process to allow the applicant to litigate those issues that were raised in the November 4, 2010 grievance.
27Having made this finding, I note that the grievance was dated November 4, 2010 and that the applicant, in his Form 3 (Reply) relies on events subsequent to that date. It is not clear from the grievance and its settlement that the grievance dealt with or was intended to deal with any allegations or events occurring subsequent to the date of the grievance. There is nothing before me that, on a balance of probabilities, would establish that the grievance addresses events occurring after the filing of the grievance. In other words, there is nothing that supports the finding that the settlement of the grievance appropriately dealt with those allegations or events occurring after November 4, 2010.
28Having found that it would be an abuse of process to allow the applicant to litigate those issues raised by the November 4, 2010 grievance and subsequently settled, I do not have to deal with the issue of whether the Application should be dismissed, in whole or in part, on the basis that a subsequent proceeding has appropriately dealt with the substance of the Application.
Reasonable Prospect of Success
29In Dabic v. Windsor Police Service, 2010 HRTO 1994 , the Tribunal made the following observations on the type of inquiry that may be involved in a summary hearing:
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 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.
30There are six allegations that have not been dismissed on the basis of an abuse of process. The applicant claims that:
- The respondent requested that he attend and later return to an IME
- The respondent demanded a copy of a lab report relating to the medications in the applicant's blood work.
- A supervisor, Masotti, berated the applicant for leaving his line to use the bathroom.
- The respondent refused to provide the applicant with a copy of his discipline file.
- The respondent talked down to the applicant and told him that he would not get a straight days line (his requested accommodation) unless and until he returned to the IME.
- The respondent's actions were actions of reprisal
31I dismiss each of the above allegations, other than the allegations that the respondent required the applicant to return to the IME, that the respondent demanded a copy of a lab report relating the medications and the applicant's blood tests and that the applicant was told that he would not get a straight days line (his requested accommodation) unless and until he returned to the IME.
32At the outset I note that jurisprudence regarding the duty to accommodate clearly establishes that all parties to the accommodation process have obligations. An individual seeking accommodation, for example, is responsible for initiating the process by stating the need for accommodation. The duty to accommodate is a cooperative duty and requires the applicant, who is seeking accommodation, to provide sufficient information to allow the respondents to understand the nature of the disability. The duty to accommodate would require, at the least, the party seeking accommodation to act in a reasonable and cooperative manner. See for example, Matthews v. Chrysler Canada Inc., 2011 HRTO 1939 and Simpson v. Commissionaires (Great Lakes), 2009 HRTO 1362.
33With respect to the applicant's claim that the respondent violated the Code by requiring the applicant to attend and then to return to an IME, it is clear from the material and submissions that the applicant initially agreed to attend the IME and did so attend. The applicant seems to take greater issue with the request that he return for further examination. There is nothing in the material that substantiates the claim that requiring the applicant to participate in the agreed to IME is a violation of the Code. Jurisprudence establishes that the respondent's duty to accommodate includes what is described as a procedural duty and a substantive duty.
34The respondent requested an IME to which the applicant agreed. This would be in keeping with the respondent's procedural duty to accommodate and the applicant's continuing obligation to act in a reasonable and cooperative manner. The respondent required the applicant to continue his participation in the IME and it was at this point that the applicant refused. At this point there is insufficient material before the Tribunal to determine why the respondent required the applicant to return to the IME. I note that the applicant did not raise the issue of returning to the IME in his application. It was raised in the applicant's reply and as such the respondent has not had the opportunity to fully respond to the applicant's allegation. As such I have not made a determination if there is a reasonable prospect of success with respect to this allegation.
35The applicant alleges that a supervisor berated the applicant because he left his line to use the bathroom. As the Tribunal noted in Forde v. Elementary Teachers' Federation of Ontario ("Forde") 2011 HRTO 1389, at para. 17, the Tribunal does not have the power to deal with general allegations of unfairness and there must be a basis beyond mere speculation or suspicion to establish a link between a ground alleged under the Code and a respondent's actions. There is nothing in the material or submissions which could establish that this conduct, if it occurred, was related to the applicant's disability and request for accommodation.
36The applicant alleges that the respondent refused to provide the applicant with a copy of his discipline file. There is nothing in the material or submissions which establishes a link between the respondent's alleged failure to accommodate the applicant and the respondent's refusal to provide the applicant with a copy of his discipline file. I repeat that the Tribunal does not deal with general allegations of unfairness and as in Forde, above, there must be a link between the ground alleged and the respondent's actions.
37The applicant alleges that at a meeting with Mr. Nangini and Brennan, the applicant was "talked down to" and advised that he could not get a straight day job until he continued with the IME. With respect to the allegation that the applicant was talked down to, I repeat that the Tribunal does not deal with general allegations of unfairness and as in Forde, above, there must be a link between the ground alleged and the respondent's actions. With respect to the statement that the applicant could not get a straight day job until he continued with the IME, as noted above there is insufficient material before the Tribunal to determine if the respondent's request to have the applicant return to the IME is a violation of the Code. As such, I have not made a determination if there is a reasonable prospect of success with respect to this allegation.
38With respect to reprisal, the reprisal section of the Code only applies to actions that are intended as a reprisal for asserting ones human rights. See Noble v. York University [2010 HRTO 878](https://www.minicounsel.ca/hrto/2010/878). For the applicant to be successful he must demonstrate an intention to punish or retaliate against the applicant and a link between the ground of reprisal and the respondents actions. The applicant relies on a series of allegations (which are set out in paragraph 30 above) as evidence of reprisal. There is nothing in the material or submissions which could, on a balance of probabilities, establish that the alleged actions of the respondent were intended to punish or retaliate against the applicant for seeking to enforce his rights under the Code. Furthermore, other than perhaps the allegations relating to the respondent's request to have the applicant return to the IME, the denial of straight days pending the applicant's continued cooperation in the IME process, and the allegation relating to the lab report, the applicant has not established a link between the respondent`s actions and the Code.
39The applicant alleges that the respondent required the applicant to return to the IME. This fact is not in dispute. However, it is not clear why the applicant was required to return to the IME and whether this request was made by the respondent or by the IME provider. There is insufficient material before me which would allow me to assess if there is a reasonable prospect of success with respect to this allegation. I note that this issue was raised by the applicant in his Form 3 (Reply) and not fully particularized in the applicant's Form 1 and as such, the respondent may not have had the opportunity to provide a full response to this allegation. Furthermore, I note that the applicant has indicated in his submissions at the summary hearing that there are further documents he intended to rely upon that have yet to be filed with the Tribunal. Accordingly, in my Order below, I set out a schedule for the parties to file further material and submissions on this issue and the other remaining issues, before I make a final determination as to whether it has no reasonable prospect of success.
40The applicant alleges that the respondent required a copy of a lab report which indicates the medications detected in the applicant's blood tests. Demands by employers for their employees to take blood tests can, in some circumstances, reasonably be considered to be a violation of the Code. I note that the applicant has produced a copy of a facsimile report which indicates that the results of a blood test were possibly sent to the respondent. However the circumstances giving rise to the request have not been clearly set out by the parties. For example, was the request made by the respondent? Was the request made in the course of the IME? What were the circumstances, if any, which gave rise to the request? There is insufficient material before me which would allow me to assess if there is a reasonable prospect of success with respect to this allegation. I note that this issue was raised by the applicant in his Form 3 (Reply) and not fully particularized in the applicant's Form 1 and as such, the respondent may not have had the opportunity to provide a full response to this allegation. Furthermore, I note that the applicant has indicated in his submissions at the summary hearing that there are further documents he intended to rely upon that have yet to be filed with the Tribunal. Accordingly, in my Order below, I set out a schedule for the parties to file further material and submissions on this issue, before I make a final determination as to whether it has no reasonable prospect of success.
ORDER
41For the foregoing reasons, I hereby make the following order:
a. I find that the Application, as it relates to those allegations which occurred prior to November 4, 2010, is dismissed on the basis of an abuse of process.
b. I find that the remaining allegations, other than the allegations that the respondent required the applicant to return to the IME, denied straight days pending the applicant's continued cooperation in the IME process, and required a copy of a lab report which indicates the medications detected in the applicant's blood test, are dismissed on the basis that there is no reasonable prospect of success.
c. With respect to the outstanding allegations, the parties are directed to take the following steps:
i. within 14 calendar days of the date of this interim decision, the applicant is directed to provide to the respondent and file with the Tribunal any documents upon which he intends to rely upon in support of the allegation that the respondent required the applicant to return to the IME, denied straight days pending the applicant's continued cooperation in the IME process, and required a copy of a lab report which indicates the medications detected in the applicant's blood test.
ii. the respondent will have a further 14 calendar days to provide to the applicant and file with the Tribunal any written submissions and any documents it intends to rely upon, in response to the applicant's allegations
iii. the applicant shall have a further 7 calendar days to make any written submissions in reply.
Dated at Toronto, this 10th day of March, 2014.
"signed by"
Daniel Randazzo
Member