Georgoudakis v. Toronto Transit Commission, 2014 HRTO 960

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Antonios Georgoudakis

Applicant

-and-

Toronto Transit Commission, Workplace Safety and Insurance Board, and Amalgamated Transit Union Local 113

Respondents

INTERIM DECISION

Adjudicator: Sheri Price

Date: June 30, 2014

Citation: 2014 HRTO 960

Indexed as: Georgoudakis v. Toronto Transit Commission

WRITTEN SUBMISSIONS

Toronto Transit Commission, Respondent

Patricia Matusiak, Counsel

INTRODUCTION

1This Application was filed on September 3, 2013, under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging that the respondents discriminated against the applicant because of disability with respect to employment.

2The applicant worked as a subway driver with the respondent Toronto Transit Commission (“TTC”). The applicant alleges that, not long after he commenced employment with the TTC, he was diagnosed with Post-traumatic Stress Disorder as a result of witnessing and experiencing traumatic incidents at work.

3The Application, though lengthy, is somewhat vague with respect to some of the events complained of, especially the dates on which such events allegedly occurred. However, it appears that the applicant’s main claim is that the TTC and the Workplace Safety and Insurance Board (“WSIB”) discriminated against him because of his mental disabilities by attempting to force and/or forcing the applicant back to work, even though he was unable to work because of his PTSD and other mental disabilities. The applicant alleges that the TTC and/or the WSIB did this by refusing the applicant’s requests for medical/occupational leave; by denying the applicant’s claims for WSIB benefits; and by expressing dissatisfaction with the fact that the applicant was off work because of his disabilities, among other things.

4The applicant also alleges that his trade union, the Amalgamated Transit Union Local 113 (“ATU Local 113”) infringed his rights under the Code by failing in its responsibility to protect the applicant from the TTC and/or WSIB. The applicant also alleges that a Union representative discriminated against him when he allegedly told the applicant that he should “man up” and return to work for the sake of his family. The Union acknowledges that there was a conversation between the Union representative in question and the applicant in March 2012, but denies that the Union representative made the alleged “man up” comment or said anything along those lines.

5In a May 20, 2014 Case Assessment Direction, the Tribunal directed that a summary hearing would be convened to determine whether the Application as against the trade union ought to be dismissed on the basis that it has no reasonable prospect of success. That summary hearing is scheduled for September 26, 2014.

6This Interim Decision addresses the TTC’s Request for an Order during Proceedings, seeking early dismissal of all or part of the Application because of delay; or, in the alternative, an Order requiring the applicant to provide further particulars of his allegations before the TTC is required to file a Response to the Application. It also addresses the status of the Application as against the WSIB.

REQUEST FOR EARLY DISMISSAL OF THE APPLICATION BECAUSE OF DELAY

7The respondent TTC has not yet filed a Response to the Application. Rather, the TTC has filed a Request for an Order during Proceedings (“RFOP”) seeking, among other things, that the Tribunal dismiss the Application in its entirety based on delay.

8Pursuant to s. 34(1) and (2) of the Code, a person may not apply to the Tribunal more than one year after the incident to which the Application relates (or more than one year after the last incident in the series of incidents to which the Application relates), unless the Tribunal is satisfied that the delay in filing the Application was incurred in good faith and that no substantial prejudice would result to anyone affected by the delay.

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.

9In this case, the Application identifies September 5, 2012, as the date of the last discriminatory event on which the Application is based. The applicant alleges that on that date a Disability Management Specialist in the TTC’s Occupational Health department told the applicant that the TTC would not accept his medical documentation and that the applicant was required to return to work, notwithstanding the applicant’s position that he was unable to work because of his mental disabilities.

10This Application was filed on September 3, 2013. Accordingly, there is no dispute that the Application was filed within one year of the alleged September 5, 2012 conversation between the applicant and the TTC’s Occupational Health department. However, the respondent submits that, even if the September 5, 2012 conversation occurred in the manner alleged, it cannot be construed as “an incident to which the Application relates” or the “last incident” in a “series of incidents” within the meaning of s.34(1) of the Code. Rather, the TTC takes the position that if the TTC did tell the applicant that he was required to return to work on September 5, 2012, that was merely the consequence of allegedly discriminatory decisions made by the WSIB in 2011 and 2012, and did not constitute an alleged discriminatory incident in and of itself.

11In addition, the TTC submits that all of the other incidents that allegedly occurred more than one year before the Application was filed, some of which date as far back to 2006 and/or 2007, should be dismissed as untimely.

12With respect, I cannot agree that the incident that allegedly occurred on September 5, 2012 is incapable of constituting a discriminatory incident to which the Application relates, on the basis that it was merely a “continuing consequence” of earlier allegedly discriminatory decisions by the WSIB.

13The concept of “continuing consequences” originates from the Manitoba Court of Appeal’s decision in Manitoba v. Manitoba (Human Rights Commission) (1984), 1983 CanLII 2967 (MB CA), 25 Man. R. (2d) 117 at para. 19 (C.A.), adopted in the Ontario Divisional Court’s decision in Visic v. Ontario Human Rights Commission, 2008 CanLII 20993 (ON SCDC). Those cases distinguished between “continuing contraventions” of human rights legislation (i.e. a succession of separate acts of discrimination of the same character), on the one hand, and “one act of discrimination, which may have continuing effects or consequences” on the other. (Visic, at para. 45)

14It emerges, then, that the “continuing” nature of an alleged incident is not necessarily all that helpful in determining whether something could be regarded as an alleged incident of discrimination. Contraventions and consequences are equally capable of having a “continuing” quality. Accordingly, the fact that an alleged incident may be connected to or even flow from past events is of limited assistance in distinguishing a “continuing contravention” from a “continuing consequence”. Rather, in determining whether an event can be regarded as an alleged “incident [of discrimination] to which the Application relates”, the key question is whether the conduct complained of, considered on its own, is the sort of conduct that could arguably support a finding of discrimination. (Garrie v. Janus Joan Inc., 2012 HRTO 1955 at para. 39.) If so, the alleged incident is an alleged discriminatory “incident to which the Application relates” within the meaning of s.34(1) of the Code.

15Applying this analysis to the case at hand, it is clear that the September 5, 2012 incident in which the TTC allegedly required the applicant to return to work, despite his protestations that he was unable to do so because of his disabilities, taken on its own, could be found to constitute an act of discrimination. In this regard, I note that it is well-established that requiring someone to work at a time when he is unable to do so because of disability can constitute adverse effect discrimination within the meaning of s.11 of the Code. (See, for example, Torrejon v. 114735 Ontario, 2010 HRTO 934, upheld on judicial review, 1147335 Ontario Inc., o/a Weston Property Management v. Torrejon, 2012 ONSC 1978.) In stating this, I wish to emphasize that I am not accepting, at this stage, that the TTC did order the applicant to work on September 5, 2012 or that the applicant was unable to work because of disabilities at that time. Nor am I suggesting that the alleged facts, if proved, would necessarily give rise to a finding of discrimination in all of the circumstances of the case. The decision being made at this stage is simply that the conduct that the applicant alleges occurred on September 5, 2012 is arguably conduct that the Tribunal could find to be discriminatory, subject to any defence being proved by the respondent TTC. Accordingly, the September 5, 2012 incident is an “incident to which the Application relates” within the meaning of s. 34(1) of the Code.

16In coming to this conclusion, I have considered the TTC’s submission that the alleged September 5, 2012 incident was merely an effect or consequence of two earlier decisions of the WSIB denying the applicant’s claim for benefits under the Workplace Safety and Insurance Act (“WSIA”), which decisions were apparently based on the WSIB’s assessment as to the applicant’s ability to return to work. In my view, while the TTC’s alleged actions may have been based on the WSIB’s decisions, this does not mean that the TTC could not have discriminated against the applicant by virtue of having required the applicant, in its capacity as his employer, to return to work on September 5, 2012. (In this regard, see Ivanescu v. Credit Valley Hospital, 2012 HRTO 1352 at para. 16-24.)

17In sum, the September 5, 2012 incident is an alleged incident of discrimination to which the Application relates within the meaning of s.34(1) of the Code. Moreover, since the September 3, 2013 Application was filed within one year of the September 5, 2012 incident, the Application is timely, at least in respect of the September 5, 2012 incident. For this reason, the TTC’s Request that the Application be dismissed in its entirety on the basis of delay must be denied.

18That said, I agree with the TTC that there is a serious issue with respect to whether parts of the Application, including, but not limited to, allegations relating to events in 2007, 2009 and 2010, ought to be dismissed on the basis of delay. However, before addressing that issue, which would require the provision of further particulars by the applicant and the filing of a Response by the TTC, if not a hearing, it is appropriate to determine whether the Application ought to be deferred pending the conclusion of the grievance and arbitration procedure in respect of a grievance filed in respect of the November 2013 termination of the applicant’s employment. This is addressed below.

DEFERRAL TO GRIEVANCE AND ARBITRATION PROCEDURE

19The September 2013 Application was filed before the applicant’s employment was terminated by the TTC and therefore does not specifically relate to the November 2013 termination of the applicant’s employment. Nonetheless, it appears that there may be a significant overlap in the facts and issues raised in this Application and the applicant’s November 2013 termination grievance. In particular, I note that, in its RFOP, the TTC pleads that the applicant’s employment was terminated because of his unsubstantiated absence from work from December 2011 onwards. The extent to which the applicant’s absence from work during a significant part of this period was unsubstantiated appears to be an issue in the Application as well.

20Deferral of an Application seeks to ensure that proceedings dealing with the same issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law. Some of the factors that may be relevant in deciding whether to defer consideration of an application before the Tribunal are the subject matter of the other proceeding, the nature of the other proceeding, the type of remedies available in the other proceeding, and whether it would be fair overall to the parties to defer, having regard to the status of each proceeding and the steps that have been taken to pursue them. The Tribunal will generally defer an application where there is an ongoing grievance under a collective agreement based on the same facts and issues. However, the Tribunal must also consider, in light of the particular circumstances of each case, whether deferral is the most fair, just and expeditious way of proceeding with the application.

21Within 14 days of the date of this Interim Decision, all of the parties to this matter are directed to provide their written submissions on whether the Tribunal should defer the Application, pending the outcome of the grievance and arbitration process in respect of the grievance filed against the November 2013 termination of the applicant’s employment. In addition to any other submissions they wish to make, the parties should address the status of the applicant’s grievance and whether and to what extent the facts and issues in the Application overlap with the facts and issues in the grievance.

22The Tribunal will determine whether to defer the Application after receipt and consideration of the parties’ submissions. Depending on its decision on the deferral issue, the Tribunal may issue further directions addressing, among other things, the outstanding requests for particulars and the parties’ obligations to file pleadings.

NOTICE OF INTENT TO DISMISS AS AGAINST WSIB

23Finally, I wish to address the status of the Application as against the WSIB.

24On November 29, 2013, the Tribunal sent the applicant a Notice of Intent to Dismiss (“NOID”) the Application as against the WSIB on the basis that the Application appeared to be outside of the Tribunal’s jurisdiction because it failed to identify any specific acts of discrimination within the meaning of the Code allegedly committed by the WSIB. The applicant was given a specific opportunity to make submissions on the issues raised in the NOID.

25In his submissions responding to the NOID, the applicant alleges, among other things, that the WSIB discriminated against him when it denied his claim for WSIB benefits for the express reason that the applicant had a mental as opposed to a physical disability.

26It is well-established that the Tribunal will dismiss an Application at a preliminary stage, without the opportunity for oral submissions, only if it is “plain and obvious” that the Application does not raise an issue within the Tribunal’s jurisdiction.

27In light of the applicant’s submissions in response to the NOID, and although there may be an issue with respect to whether the Application as against the WSIB has any reasonable prospect of success, it is not plain and obvious that the applicant does not raise allegations against the WSIB that are within the Tribunal’s jurisdiction to determine. Accordingly, the Application is not dismissed as against the WSIB on this basis.

28In the normal course, it would be appropriate, at this stage, to deliver a copy of the Application to the WSIB and to require it to file a Response to the Application. However, as noted above, in the particular circumstances of this case, I find it fair, just and expeditious to determine whether the Tribunal ought to defer consideration of the Application pending the conclusion of the grievance and arbitration procedure in respect of the applicant’s termination grievance, before requiring the WSIB to file a Response to the Application. The Application will be delivered to the WSIB along with this Interim Decision, along with the applicant’s submissions in response to the NOID and other filings exchanged between the parties to date that have not already been provided to the WSIB.

DIRECTIONS

29It is not plain and obvious that the Application fails to identify any specific acts of discrimination within the meaning of the Code allegedly committed by the respondent WSIB. Accordingly, the Application is not dismissed as against WSIB on this basis. A copy of the Application is delivered to the WSIB with this Interim Decision, the applicant’s submissions in response to the NOID and other filings exchanged between the parties to date that have not already been provided to the WSIB.

30The respondent TTC’s Request that the Application be dismissed in its entirety on the basis of delay is denied. The respondent’s Request that the applicant’s allegations regarding events that allegedly occurred prior to September 3, 2012 (i.e. more than one year before the Application was filed) will be addressed, if necessary, in due course.

31Within 14 days of the date of this Interim Decision, all of the parties are directed to provide their written submissions on whether the Tribunal should defer the Application, pending the outcome of the grievance and arbitration process in respect of the grievance filed against the November 2013 termination of the applicant’s employment. In addition to any other submissions they wish to make, the parties should address the status of the applicant’s grievance and whether and to what extent the facts and issues in the Application overlap with the facts and issues in the grievance.

32The Tribunal will determine whether to defer the Application after receipt and consideration of the parties’ submissions. Depending on its decision on the deferral issue, the Tribunal may issue further directions addressing, among other things, the outstanding requests for particulars and the parties’ obligations to file pleadings.