HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Michael Ramasawaksingh

Applicant

-and-

The Corporation of the City of Brampton and Amalgamated Transit Union, Local 1573

Respondents

INTERIM DECISION

Adjudicator: David Muir

Date: August 6, 2015

Citation: 2015 HRTO 1047

Indexed as: Ramasawaksingh v. Brampton (City)

APPEARANCES

Michael Ramsawaksingh, Applicant

Self-represented

City of Brampton, Respondent

Michael MacLellan, Counsel

Amalgamated Transit Union Local 1573, Respondent

Cynthia Watson, Counsel

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 in employment on the basis of disability. The Application named the City of Brampton (“Brampton”) and Amalgamated Transit Union, Local 1573 (“ATU”) as respondents.

2In a Case Assessment Direction issued on February 25, 2015, the Tribunal directed on its own initiative that a summary hearing be held to determine whether the Application should continue against ATU. In a further CAD issued on July 15, 2015 the Tribunal directed that the respondent Brampton’s Request for a Summary Hearing and Request for Order During Proceeding be addressed at the summary hearing.

3A summary hearing took place on Monday July 20, 2015 by telephone conference call. All parties participated. The applicant was assisted by two former union officials, Mr. Jodouin and Mr. Pashapouri.

[4] Rules 19A.1 and 19A.2 of the Tribunal’s Rules of Procedure read as follows:

19A.1 The Tribunal may hold a summary hearing, on its own initiative or at the request of a party, on the question of whether an 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.

19A.2 Rules 16 and 17 do not apply to summary hearings. The Tribunal may give directions about steps the parties must take prior to the summary hearing, including disclosure or witness statements.

[5] Details about the nature of a summary hearing were set out as follows in Dabic v. Windsor Police Service, [2010 HRTO 1994](https://www.minicounsel.ca/hrto/2010/1994) at paras. [8 and 9](https://www.minicounsel.ca/hrto/2010/1994):

… 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.

6In his Application the applicant alleged that he experienced discrimination in employment because his rate of pay was decreased when he was accommodated in a permanent position. The applicant also alleged that he was no longer received compensation for keeping his mechanic’s licence current. There were no identifiable allegations as against the ATU.

7At the summary hearing the applicant made new allegations. The applicant claimed for the first time that he was able to perform his pre-injury work with modifications. He also alleged that the creation of a new position for him and another injured worker was discriminatory.

8The Application as it related to the ATU is dismissed because it has no reasonable prospect of success. On the face of the Application there are no allegations as against the ATU. At the hearing as indicated the applicant alleged that the creation of a new job classification for him and another injured worker was discriminatory. I agree with the ATU that it is not discrimination unless there is evidence that this position was created to disadvantage injured workers in some way. There is no such evidence. It appears based on the material filed, that the creation of the new job classification was an attempt to provide a permanent accommodation for the applicant and another injured worker. The creation of a new position may exceed what is required by the Code and beyond what the Tribunal might order in a given case but it is not discrimination.

9It is also understandable that the applicant would be disappointed that the new position attracts a different rate of pay than his pre-injury employment but the fact that a new position attracts a lesser rate of pay is not discriminatory. See for example Nearing v. Toronto (City), 2010 HRTO 1351 and Koroli v. Automodule Corp, 2011 HRTO 774 both of which refer to the Ontario Court of Appeal’s Decision in Ontario Nurses’ Association v. Orillia Soldier’s Memorial Hospital [1999] O./J. No.c 44, 42 ).R. (3d) 692. I agree with and adopt the reasoning in these cases.

10As regards the Application against Brampton, on the face of the Application the only allegations relate to the rate of pay being different and the failure of Brampton to compensate the applicant for expenses associated with keeping his mechanic’s licence current. Moreover the remedies sought relate for the most part to the consequences of the reduced pay rate. Neither of these allegations constitute discrimination under the Code. Neither does the new allegation made at the hearing that the creation of a new job classification for the applicant and another employee constitute discrimination under the Code. These aspects of the Application are dismissed.

11However at the hearing the applicant alleged for the first time that he was able to perform his pre-injury duties as a mechanic with minor modifications to the work that would fall short of imposing undue hardship on Brampton. When asked about this the applicant responded that he could do 70% of the job. He also said that the medical evidence would support his claim. A physican who was assisting the applicant asserted that the only thing the applicant was prevented from doing was climbing ladders

12This new allegation appeared to come as a surprise to both respondents. I note that this new allegation is not entirely consistent with the Application wherein the applicant states that “due too my knee injury I am unable to lift heavy objects, walk excessively, bending.” It is also inconsistent with his agreement to do the work of the new position in June 2014. However at this preliminary stage of the proceeding I am not prepared to conclude that the entire Application should be dismissed because it has no reasonable prospect of success without affording the applicant an opportunity to further elaborate this new position.

13The Tribunal makes the following Directions:

a. The Application as it relates to the ATU is dismissed;

b. The Application as against Brampton is dismissed in part;

c. The applicant is directed to deliver and file, within 28 days of the date of this Interim Decision, full particulars of his allegation that he is able to perform 70% of the duties of his pre-injury position including any medical evidence which support this contention. The applicant should also provide full particulars of his current restrictions and any modifications he would require in order to perform his pre-injury position.

d. This Interim Decision does not prevent the respondent Brampton from renewing its Request for a summary hearing after receipt of applicant’s materials.

e. The Tribunal may make further Directions with respect to this case on receipt of the applicant’s materials.

14I am not seized of this case.