John Nahirny v. Liquor Control Board of Ontario, 2015 HRTO 1601

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 and Ron Scarcello Respondents

INTERIM DECISION

Adjudicator: David Muir Date: November 26, 2015 Citation: 2015 HRTO 1601 Indexed as: Nahirny v. Liquor Control Board of Ontario

APPEARANCES

John Nahirny, Applicant Self-represented

Liquor Control Board of Ontario and Ron Scarcello, Respondents Justin Diggle, Counsel

Ontario Public Service Employees’ Union, Respondent Adrienne Liang, 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 with respect to employment because of disability, family status and reprisal.

Summary Hearing

2In 2013 HRTO 1845 I directed that a summary hearing be held to determine whether all or part of this Application should be dismissed because all or part of it has no reasonable prospect of success. For a number of reasons this Direction was overtaken by events. In a Case Assessment Direction issued on May 7, 2015, I directed that the summary hearing be re-scheduled.

3A summary hearing was held on September 8, 2015 by telephone conference call. All parties participated. The respondents are the Ontario Public Services Employees’ Union (“OPSEU”), the applicant’s bargaining agent; the LCBO and Ron Scarcello (the LCBO and LCBO respondents), the applicant’s employer.

4After considering the lengthy submissions, both written and oral, I have determined that the allegation that the LCBO respondents reprised against the applicant and failed to accommodate his family status needs must be dismissed because these aspects of the Application have no reasonable prospect of success. The Application as it relates to OPSEU is also dismissed. The allegation that the applicant was directed to work outside of his restrictions will proceed to a one day hearing. My reasons for these conclusions follow.

5This summary hearing was held pursuant to Rules 19A.1 and 19A.2 of the Tribunal’s Rules of Procedure which 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.

10Details about the nature of a summary hearing were set out as follows in Dabic v. Windsor Police Service, 2010 HRTO 1994, at paras. 8 and 9:

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 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.

11The Applicant makes essentially three allegations:

a. That on June 25, 2013 (the “June 25 incident”) he was asked to work outside of his restrictions resulting in a verbal altercation with a supervisor and him being sent home from work on one occasion;

b. That the investigation of the June 25 incident was flawed;

c. That the respondent failed to accommodate his family status needs and reprised against him when it proposed to transfer him from Store #2 to Store #8.

12By way of background, the applicant allegedly provides significant care to his aging parents, particularly his mother with whom he resides. Further to a number of grievances filed by the applicant, a settlement was negotiated between the applicant and the LCBO. As part of the settlement it was agreed that should a vacancy occur the employer would transfer the applicant to one of three LCBO locations, Store #2, #8, or #15, all of which were close to the applicant’s home. It was agreed that such a transfer was not permanent but that the employer would consider the applicant’s parental care obligations going forward. Shortly after the settlement was executed in September 2009 a vacancy occurred in Store #2. The settlement had been in place for almost four years with the applicant working in Store #2 which is said to be the closest of the three to his home when the incidents giving rise to this Application occurred.

13On June 25, 2013 (the “June 25 incident”) a conflict arose between the applicant and a member of management in Store #2. In his Application the applicant claims that he was being asked to perform work beyond his restrictions. A verbal altercation may have ensued and ultimately the applicant was sent home or left the workplace – there may be a dispute about which occurred.

14The applicant wrote two letters of complaint about the June 25 incident – on June 26 and June 27, 2013. In one of these letters the applicant requested a meeting with management to discuss the incident with union representation. In letters dated June 28 and July 25, 2013 the applicant was invited to attend meetings about these issues but he declined to attend.

15In a letter dated July 3, 2013 the respondent employer informed the applicant, following a conversation in which the applicant is said to have told the Manager of Store #2 that he could not work with the supervisor involved in the June 25 incident, that he would be transferred Store #8 until such time as further information about the June 25 incident could be obtained. On July 4, 2013 the applicant wrote to the employer complaining that the proposed transfer was a reprisal “against me as a health and safety representative”. In the same communication he advised that he would be taking the following few days off to deal with the stress of responding to the employer’s actions. There is no mention of any accommodation issues in this correspondence nor is there any indication that the applicant believed he had experienced a reprisal because he had asserted a Code protection. On July 8, 2013, the applicant forwarded a copy of a medical note which indicated that he would be off work until further notice “for medical reasons”. The applicant has not attended the workplace since.

16The respondent employer alleges that it investigated the June 25 incident which it treated from the outset as one that might lead to discipline. Accordingly the respondent warned the applicant that the issues raised by the June 25 incident had the potential to lead to discipline as it believes the collective agreement requires it to do. As a result of my question about the basis for this understanding a further dispute arose about this issue. Having reviewed the lengthy submissions of the applicant and the cases referred to by the parties I am of the view that this issue is entirely tangential and immaterial to the issues in dispute in this case. Whether the applicant is ultimately correct or not that the work assignment on June 25 was inappropriate, it was not unreasonable for the respondent to conclude that it was not and that in fact the applicant had been insubordinate which could result in discipline. As such its warning was not inappropriate and was not a justification for the applicant to disengage from discussion of these issues with the employer. In any case, the respondent employer requested that the applicant prepare a written statement and attend a meeting with respect to the June 25 incident. The applicant declined to attend the meeting allegedly because of the warning about the possibility of discipline.

17As regards the transfer to Store #8 the applicant did express concern about the lack of consultation about it with senior management of the employer on July 9 in an email complaining about a number of issues including this one. This email was copied to a number of other managers of the respondent including its president. The applicant requested a meeting with the LCBO and OPSEU to discuss what the applicant characterized as a number of health and safety issues. There is other correspondence between the applicant and senior management of the LCBO about what the applicant alleges were other health and safety lapses in the respondent’s stores.

18In an email dated August 1, 2013 to the president of the respondent, the applicant asserted for the first time that he believed that his family status accommodation needs would not be met with the transfer to Store #8. In the same letter he also advised that he was going to take time and asked that the respondent not communicate with him either directly or indirectly until such time as he regained his health.

19The applicant did not indicate to the LCBO that he was prepared to re-engage with the employer about these issues prior to the Application being filed. The Application was filed on October 29, 2013.

Decision

20To the extent that the issue of his family status accommodation was raised with the respondent the applicant provided no medical evidence to the respondent LCBO to substantiate his claim that his family status needs had changed from the time the agreement had been entered into (which established any of Stores #2, #8, or #15 as suitable for his family status needs) and prior to filing the Application. Other than materials filed in his submissions in this case the applicant has not provided any further information to the respondent with respect to his assertion that he should not be bound by the 2009 settlement because his family status needs have changed. The applicant essentially disengaged from the accommodation process in August 2013 and, as indicated, has not been in the workplace since early July 2013. The respondent argues that this Application is an abuse of process in that the applicant has sought to use this litigation instead of dealing directly with the employer about his alleged accommodation needs.

21However the applicant argued that the respondent was aware of his changing needs. I note that this allegation does not appear to be contained in the Application. However, the applicant stated at the hearing for the first time that during a discussion in relation to a request made by a manager in 2010 that he transfer to Store #8 for a short-term assignment, he advised the employer at that point that his needs had changed. The respondents deny any knowledge of this allegation.

22Even if, as the applicant alleges, he had a conversation with a supervisor about his changing needs for accommodation in 2010 the fact is that the subsequent medical information he provided to the respondent a year later contradicts that assertion. In a note dated September 8, 2011, a treating physician advised that nothing had changed as regards this need for family status accommodation since his previous advice from March 2009. In my view on July 3, 2013 the LCBO respondents would have had no reason not to believe that each of the stores identified in the 2009 settlement remained appropriate assignments for the applicant.

23This Application must be dismissed as it relates to the family status accommodation because in my view it has no reasonable prospect of success. As I indicated in 2013 HRTO 1845, the Tribunal does not have the general power to deal with allegations of unfairness. It can only deal with alleged discrimination or harassment on the grounds set out in the Code. To succeed in an Application, an applicant must be able to prove discrimination on the basis of a Code ground on a balance of probabilities.

24The LCBO respondents argued that the applicant effectively withdrew from the accomodation process and never gave them an opportunity to respond to his only partially articulated concerns about the family status accommodation issue.

25I agree. As with his approach in this proceeding the applicant is not reluctant to raise issues but does so in a way that often makes it difficult to be sure what is being referred to. It appears that the applicant was the health and safety representative for Store #2. He had clearly raised a number of concerns about health and safety matters which have overlapped both in the correspondence referred to above and in the Application where he appears to suggest that a reprisal for raising a health and safety issue is also discrimination under the Code. This is not necessarily the case. So for example he initially described the transfer to Store #8 as a reprisal for having raised health and safety issues and only later described it as a failure to accommodate his family status needs.

26The reprisal section of the Code only applies to the actions of a respondent that are intended as a reprisal for any of the following: (1) claiming or enforcing a right under the Code; (2) instituting or participating in proceedings under the Code; or, (3) refusing to infringe the right of another person under the Code [s. 8]. See for example Mirea v. Canadian National Exhibition, 2009 HRTO 32; Chan v. Tai Pan Vacations, 2009 HRTO 273, Noble v. York University, 2010 HRTO 878 at para. 31.

27To the extent that the applicant alleges that the transfer to Store #8 was a reprisal it is dismissed both because it is framed as a reprisal under the Occupational Health and Safety Act and because there is no evidence to which the applicant can point which would tend to establish that it was intended as punishment for him having raised a Code issue with the respondent as opposed to his concern about working with the supervisor in Store #2.

28I also find that the applicant withdrew from the accommodation process with respect to his alleged family status accommodation needs and instead filed this Application. In this regard I need not find that the applicant has engaged in an abuse of process in seeking to use this process in lieu of dealing with the issues with his employer as he is required to do. However, I think there is some basis for the respondent’s concern as I have already noted in prior determinations in this case.

29It is particularly noteworthy that when the applicant first makes it clear in writing that he is alleging a failure to accommodate he in the same communication tells the LCBO respondents not to contact him either directly or indirectly. The applicant asserts that he left the channel open for a discussion of the family status issue but that is not a remotely reasonable interpretation of his August 1, 2013 email. I have also considered the fact that the applicant had left the workplace before actually being required to make the move and has not returned to the workplace since. In the circumstances of this case, there is no reasonable prospect that the Tribunal could conclude that the respondents had either failed in their duty to accommodate the applicant or that it failed to properly investigate his claim with respect to the family status issues at the time. This is particularly so given that the only medical information the LCBO respondents had in their possession did not support the applicant’s claim.

30The allegation that the LCBO respondent required the applicant to work outside of his restrictions will proceed to a two day hearing. Similarly, the allegation that the LCBO respondents’ investigation was flawed will be heard as well.

31The Tribunal’s Rules provide that where all or part of an Application is not dismissed at a summary hearing the Tribunal need not give reasons and in the circumstances no detailed reasons will be provided other than to note that at this stage I am unable to conclude that there is no reasonable prospect that this aspect of the Application cannot succeed. My conclusions do not of course mean that these aspects of the Application will succeed but there appear to be facts in dispute that will require some evidence to resolve, particularly as it relates to the first allegation. I understand the LCBO’s argument that the applicant suffered no adverse consequences as a result of the workplace dispute because he refused to perform the task required of him. However I note that the applicant was sent home for the remained of his shift. In addition to resolving the factual disputes around the task being asked of the applicant, an issue for the Tribunal to determine may be whether being sent home from work is an adverse consequence. I am not prepared at this stage to conclude that it could not be. As regards the alleged flawed investigation, the applicant makes a number of assertions with respect to this claim which have no relation to any Code issue and it may be that after hearing his evidence on this point there is no need for a response from the LCBO, however at this stage I leave that to the hearing adjudicator to determine after the parties have made further disclosure.

The Application as it relates to OPSEU

32The applicant has also named his bargaining agent OPSEU as a respondent

33The Tribunal has held that it is not a violation of the Code that the Application merely allege that a bargaining agent failed to properly represent the applicant or pursue a grievance. In Traversy v. Mississauga Firefighters’ Association, 2009 HRTO 996, the Tribunal stated as follows at para. 33:

Assuming that the Code also applies to this aspect of a union’s relationship with the employees it represents, a claim that the union violates the Code must be based on an assertion of differential treatment, and not simply a failure to act. The failure or refusal to take forward a human rights issue, such as accommodation of a disability in the workplace, is not, in and of itself, a breach of the Code. There may be many reasons that have no discriminatory overtones why a union might choose not to pursue a human rights claim on behalf of an employee: see Baylet v. Universal Workers Union, 2009 HRTO 700. There must be a claim, and a factual foundation for the claim, that the failure to act was based on discriminatory factors.

See also Arias v. Centre for Spanish Speaking Peoples, 2009 HRTO 1025, at paras. 16-18.

34The applicant made no allegations of discrimination by OPSEU in the Application. At the summary hearing, when asked, the applicant argued that when he asked them to file grievances they did not and when he asked them about the possibility of an interim remedy he was told it was not possible. Neither of these alleged responses by OPSEU are evidently discriminatory and the applicant can point to no evidence that would tend to support the conclusion that a factor in OPSEU’s responses to him were any of the prohibited grounds claimed. I also note that OPSEU has filed several grievances on behalf of the applicant related in part to the issues raised in this Application. Accordingly the application as it relates to OPSEU is dismissed.

Order

a. The Application as it relates to OPSEU is dismissed;

b. The Application as it relates to an alleged failure to accommodate the applicant’s family status accommodation needs is dismissed;

c. The Application as it relates to an alleged request to work outside of his restrictions on June 25, 2013 and the subsequent investigation will proceed to a two day hearing.

35I am not seized of this case.