Craig v. Sunnybrook Health Sciences Centre, 2015 HRTO 1500

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Christine Craig

Applicant

-and-

Sunnybrook Health Sciences Centre and Service Employees International Union, Local 1 Canada

Respondents

INTERIM DECISION

Adjudicator: David Muir Date: November 6, 2015 Citation: 2015 HRTO 1500 Indexed As: Craig v. Sunnybrook Health Sciences Centre

APPEARANCES

Christine Craig, Applicant Glenn Chochla, Counsel

Sunnybrook Health Sciences Centre, Respondent Bonny Mak Waterfall, Counsel

SEIU, Local 1 Canada, Respondent Helen Nowak, Counsel

1This is an Application filed pursuant to section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination in employment because of disability.

Background

2The applicant commenced her employment with the employer in June 1998 as a Registered Practical Nurse (“RPN”). In December 2003, the applicant suffered a workplace injury. The applicant experienced repeated difficulties in the workplace such that she was forced to stop working in March, 2005.

3In 2009, the applicant was examined by a psychiatrist on behalf of the Workplace Safety and Insurance Board (“WSIB”). The psychiatric report concluded that in addition to chronic back pain, the applicant suffered from Dysthymic Disorder (a form of depression) and an Occupational Problem, noting that “not being able to work, makes her feel limited and diminishes her self-esteem”. As a result, the WSIB found that the applicant suffered from a permanent partial disability. The applicant’s disabilities allegedly prevent her from performing the essential duties of her RPN position.

4The respondent Service Employees International Union, Local 1 Canada (“SEIU”) is the applicant’s bargaining agent. Appended to its Response to the Application was a Request for a Summary Hearing to hear submissions on whether or not the Application should be dismissed in whole or in part as against the SEIU because it had no reasonable prospect of success. This Request was granted in a Case Assessment Direction (“CAD”) issued on May 26, 2015.

5The respondent, Sunnybrook Health Sciences Centre (“Sunnybrook”), filed a Request on June 5, 2015, seeking the dismissal of the Application in whole or in part on the basis that it was not filed within the time limits set out in subsection 34(1) of the Code. At the same time Sunnybrook requested that the Tribunal defer the Application pending the completion of the grievance and arbitration process No. 100-217-260. These issues were added to the summary hearing issues above in the CAD issued to the parties on May 26, 2015.

The Request to Defer

6The Request to Defer is denied. The grievance is being held in abeyance pending the conclusion of this proceeding. Sunnybrook argued that it should not be put to the risk of litigating the same allegations at the same time in two proceedings. However, at this stage, that risk is entirely speculative. It also says that it does not want to be faced with the prospect of concluding this proceeding and then being faced with a re-activated grievance. This risk is similarly speculative and subject to a decision by a grievance arbitrator who would undoubtedly be called on the decide whether or not in light of the conclusion of this proceeding whether it would be appropriate to proceed.

The Summary Hearing (Request to Dismiss the Application as against the SEIU)

7The Application as against the SEIU is dismissed in its entirety because I find that it has no reasonable prospect of success.

8In her Application as framed, the applicant alleges that the trade union discriminated against her on the basis of her disability. The applicant relies on what she alleges was a failure on the part of the union to accommodate her disabilities to the point of undue hardship. The allegations are framed in very general terms and are for the most part mere assertions that the SEIU did not adequately represent her interests.

9However, the applicant also argues that the trade union failed in its duty under the collective agreement as part of the accommodation process. The applicant relies on article 19.06 of the relevant collective agreement, which establishes an early and safe return to work committee whose role is to assist with the process of returning employees with workplace injuries to work as soon as possible and to supervise returns to work for disabled workers. The committee includes one member of the union, one from management and a member from the Occupation Health Service of the respondent Sunnybrook. The applicant contends that the process required by the article was never completed, in particular the requirements of 19.06(c)(ii):

Determine in conjunction with the department manager, whether the existing job can be modified to meet the employee’s needs. If this is not possible, the committee will discuss whether a suitable vacant position exists elsewhere.

10The applicant argues that given this language in the collective agreement which “deals the union” into the accommodation process in a significant way, it cannot then deal itself out by not following the procedures set out in the collective agreement.

11I do not agree with the applicant on this point. The role of the trade union in the accommodation process is quite limited. As I read the cases, Central Okanagan School District No. 23 v. Renaud, 1992 CanLII 81 (SCC), [1992] 2 SCR 970, in particular, a trade union may be found to be liable if it negotiates work rules that violate the Code, and more directly related to the issues in this case, if they were to stand in the way of a necessary accommodation proposed by the employer. At the end of the day the employer controls the workplace; the union’s role in most respects is at best consultative, and the law requires that it not be obstructionist in denying accommodations that might be available to a worker. There is no evidence to which the applicant can point which would tend to establish that the union did or failed to do anything that the law requires of it.

12The applicant also argues that the decision of the SEIU to hold the grievance in abeyance pending the conclusion of this proceeding was done in reprisal for the applicant having filed the grievance. It is reasonably clear that the SEIU decided to not proceed with the grievance because the applicant filed this Application at least in part, but the question before me is whether there is any evidence that it did so as punishment for the applicant having filed an Application against the SEIU. There is no evidence to which the applicant can point which would tend to establish the necessary intent to punish her – a factor necessary for a finding of reprisal. I note in this regard that the union has not withdrawn the grievance, hence preserving her rights, a source of some concern for the respondent (see deferral discussion above); it simply is holding it down. I have reviewed the correspondence between the applicant and the SEIU. There is nothing in these interactions that would support the applicant’s belief that deferring the grievance was intended to punish the applicant for filing this Application. It is clear that the SEIU has some concern about the merits of the grievance and has repeatedly asked the applicant for further medical information. It is also clear that the SEIU believed that the applicant was not making the best decisions but that is not evidence of an intent to reprise against her.

Delay

13Sections 34(1) and (2) of the Code provide:

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.

14Sunnybrook argues that the entire Application as against it should be dismissed. It argues that the decision complained of by the applicant was made in 2005 and that all that happened subsequent to that was the re-hashing of the decision made at that time – that the applicant could not be accommodated without undue hardship.

15I do not agree. It may be that from the perspective of Sunnybrook nothing had changed from 2005 and that in its view the decisions taken at that point should stand. But from the perspective of the applicant that was not the case. Although there appear to be significant gaps in the narrative (about which more will be said later), it is clear that at some point in mid-2013 the applicant and the SEIU began again to explore the possibility of a return to work for the applicant, who remained an employee on medical leave. Sunnybrook argues that these were simply attempts to have it change its decision taken several years earlier. This may ultimately prove to be the case, but in my view at this preliminary stage, Sunnybrook may have been required to consider a change of circumstances; although this is not determinative, it did to some degree engage with the applicant and the SEIU about the possibility of her returning to the workplace. The obligation to accommodate an employee is an ongoing one. Sunnybrook may be right in the end that there was no material change in the circumstances but in my view it does not follow from the fact that the respondent had determined that it could not accommodate the applicant in earlier years that it could not do so in 2013. Things change, the impairments flowing from an injury change, and workplaces change.

16In any event, after initial discussions with the employer failed, the applicant filed a grievance in October 2013. The SEIU and Sunnybrook agreed to temporarily suspend the grievance arbitration process while they explored options. According to Sunnybrook, between October 2013 and March 2014 it and the union engaged in ongoing discussions with the goal of identifying potentially suitable positions for the applicant. Those efforts concluded in March 2014. The Application was filed on September 30, 2014. In my view the Application as it relates to events after December 2012 appears to be timely and at this stage at least this part of it is within the Tribunal’s jurisdiction.

17Sunnybrook also argues that the Application as it relates to events prior to mid-2013 should be dismissed due to delay. The respondent argues that most of the alleged incidents of discrimination occurred in 2004, 2005 and 2006 and that there are very few if any alleged incidents of discrimination between 2007 and mid-2013. In large part I agree with the respondent on this point although the applicant argued otherwise. The applicant relies on unparticularized discussions, which may have taken place in 2009 and 2011, which appear to have largely revolved around the possibility of the applicant leaving her employment and taking a severance package. In my view there are no particularized allegations of any incidents of discrimination between 2008 and 2012. Hence a significant gap in time between a period of relative intense activity between the applicant’s injury in 2003 and the last failed attempt to return her to work in 2008 and what appears to be the first substantial contact with her bargaining agent again in late 2012 leading to a request for a return to work meeting with Sunnybrook in early 2013. This is simply too large a gap in time for these allegations to be considered a series of incidents. The applicant relies on section 34(2)(b) which contemplates the filing of an Application within a year of the last of a series of incidents. The Tribunal has interpreted the concept of “series of incidents” in the section as one or more incidents connected to each other both thematically and temporally. It has also held on numerous occasions that a gap in time of more than one year will in most cases interrupt a putative series of incidents. In this case the gaps in time between several of the older allegations are greatly in excess of one year and accordingly the Application as it relates to incidents prior to late 2012 or early 2013, when the applicant and the SEIU approached Sunnybrook about a possible return to work, is dismissed.

18The extent to which some of the earlier incidents will be necessary as background to the events culminating in this Application will be left to the hearing adjudicator to determine if the parties are unable to resolve this case prior to a hearing.

ORDER

19The Tribunal orders the following:

a. The Application as it relates to the SEIU is dismissed.

b. The Application as it relates to incidents prior to late 2012 / early 2013 is dismissed.

20I am not seized.