Jamal Hassan v. City of Ottawa, 2015 HRTO 71

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jamal Hassan

Applicant

-and-

City of Ottawa

Respondent

-and-

Amalgamated Transit Union, Local 279

Intervenor

Decision

Adjudicator: Leslie Reaume

Date: January 19, 2015

Citation: 2015 HRTO 71

Indexed as: Hassan v. Ottawa (City)

appearances

Jamal Hassan, Applicant

Russell MacCrimmon, Counsel

City of Ottawa, Respondent

David Patacairk, Counsel

Amalgamated Transit Union, Local 279, Intervenor

Samantha Lamb, Counsel

1The applicant filed an Application under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment on the basis of disability. The applicant also filed a complaint with the Canadian Human Rights Commission in relation to the same allegations. This Decision addresses the question whether this Tribunal has jurisdiction to deal with the subject-matter of the Application.

2The applicant was employed as a bus driver beginning in December 2001 with OC Transpo, the transit department of the City of Ottawa. He was represented by the Amalgamated Transit Union, Local 279. The applicant has not worked as a bus driver since 2005, which he alleges is attributable to workplace harassment. The applicant was in receipt of long term disability benefits from 2006 to 2008 pursuant to the terms of his collective agreement. When he was ready to return to work, he asked to be accommodated in a position within the City of Ottawa but outside of OC Transpo. To summarize the events which occurred after this point, the applicant was placed on “priority placement”, secured some work on a temporary basis within the City of Ottawa, was terminated, reinstated through the grievance process, and then terminated one year later on a final basis. At no time did the applicant achieve a full-time position with the City of Ottawa outside of OC Transpo.

3There is no dispute that OC Transpo is a federal undertaking and that its labour relations are governed by federal legislation. Generally human rights allegations made by OC Transpo employees are dealt with under federal legislation. The respondent maintains that the applicant was an employee of OC Transpo from the time that he was hired until his final termination and therefore his discrimination allegations fall within federal jurisdiction.

4The applicant argues that notwithstanding his employment as a bus driver for OC Transpo, his allegations fall within provincial jurisdiction for a number of reasons. The first is that the applicant has had no real connection with OC Transpo since 2005. The accommodation he has required since he was ready to return to work from long term disability has been to work outside of OC Transpo. The applicant is not and will never be medically cleared to return to work with OC Transpo.

5The second is that the applicant’s allegations are against employees of the City of Ottawa who administer the priority placement program and are themselves provincially-regulated.

6The third is that when the applicant was terminated on July 28, 2009, he negotiated a reinstatement which effectively severed his relationship with OC Transpo. The applicant argues that he was reinstated to the priority placement list as a City of Ottawa employee for the year prior to his final termination.

7The applicant’s union is an intervenor in this matter and argues that the applicant maintained his status as an employee of OC Transpo and a member of the union until his final termination. When the applicant was terminated the first time after a significant period of time on the priority placement list, he turned to his union to file a grievance on his behalf. The union negotiated a settlement which reinstated him and which provided for one further year on the priority placement list.

8The union argues that if the applicant’s relationship with OC Transpo was effectively severed at any point, he would not have been eligible for representation by the union. This would result in a gap in representation at a time when the applicant was vulnerable and still in search of a permanent accommodation. The applicant asked his union to grieve both the first and second termination. The union argues that the applicant’s actions in turning to the union for help are inconsistent with the belief that his relationship with OC Transpo (and as a result, his representation by the union) had been severed at any time, including by agreement following the first termination.

9The facts are central to resolving any question of jurisdiction. As a result, I determined that the jurisdictional issue could not be resolved on the basis of written submissions alone. I heard testimony from the applicant and a representative of OC Transpo. While the allegations of discrimination are in dispute, the basic facts of this case are not.

10The applicant’s understanding of priority placement is that it would assist him in finding a suitable position, consistent with his medical restrictions, outside of OC Transpo. From January 2008 to March 2008 the applicant secured a temporary position through priority placement with the City of Ottawa at the Public Health Clinic. On October 26, 2009, he commenced work in a position with the City of Ottawa’s Community and Social Services department. That assignment ended in January 2010, at which time the applicant was placed once again on the priority placement list. While he was on temporary assignments he was enrolled in benefits and subject to union dues under a CUPE collective agreement. The allegations of discrimination do not arise from these placements with the City of Ottawa.

11By July 28, 2010, the applicant had not secured a full-time position through priority placement and he was terminated. The termination was grieved by the applicant’s union in accordance with his collective agreement and his status as an employee of OC Transpo. The union and the applicant entered into Minutes of Settlement with the City of Ottawa on June 13, 2011. The applicant’s employment was reinstated and he was placed back on the priority placement list for another year.

12The applicant’s documentary evidence includes internal documents which appear to relate to the applicant’s transition from OC Transpo to priority placement. Those documents indicate that the applicant’s position with OC Transpo has been “vacated” and that he will not be returning. He also relies on the Minutes of Settlement, which confirm that his employment with the “City of Ottawa” was terminated on January 28, 2010, and that he is being “reinstated to employment with the City of Ottawa and placed on an unpaid leave of absence”. The applicant argues that these documents support he was not an OC Transpo employee during his last year on priority placement.

13I note that the Minutes of Settlement also indicate that the applicant’s allegations engage the Canadian Human Rights Act, specifically issues of accommodation, that ATU will continue to provide representation to the applicant during his final year on priority placement and that the arbitrator was to remain seized of all issues relating to the interpretation or enforcement of the Minutes of Settlement. It is also not disputed that when he was terminated for a second time, the applicant asked the union to grieve his termination and assist him in filing a human rights complaint.

14The applicant’s allegations of discrimination arise primarily from the period of time after he was reinstated. The applicant alleges that he applied to 23 positions and that his applications were summarily rejected because of discrimination. The applicant was terminated for a second and final time on July 18, 2012. The applicant’s union refused to initiate a grievance in relation to the termination.

15I heard evidence on behalf of the City of Ottawa from Ms. Joanna Venditti, a Manager with OC Transpo. She testified that while OC Transpo is served by a centralized human resource function within the City of Ottawa, the applicant remained an employee with OC Transpo until his final termination. She testified that the applicant’s rights as an employee to sickness, disability, and pension benefits, as well as accommodation, including placement in a position outside of OC Transpo, were determined by his collective agreement. Ms. Venditti testified that the applicant, like any other bus driver on priority placement, maintained his employment status with OC Transpo until he secured an alternative full-time position or was terminated.

16As I indicated above, the parties do not dispute that OC Transpo is a federal undertaking and that its labour relations are governed by federal legislation. The parties also do not dispute that this Tribunal has routinely dismissed applications involving OC Transpo employees alleging discrimination against OC Transpo. In addition, in at least one case, this Tribunal has refused to exercise jurisdiction over allegations which relate to the City of Ottawa’s priority placement system where an OC Transpo employee was the applicant: Ayotte v. Ottawa (City), 2012 HRTO 85 (“Ayotte”). In that case, an employee was removed from his duties as a bus driver with OC Transpo and placed on priority placement.

17The applicant argues that his circumstances can be distinguished from other cases, including Ayotte, on the basis that his employment relationship with OC Transpo was effectively severed by the fact that he was not medically fit to return to OC Transpo and that when he was terminated, he was reinstated to the status of a City of Ottawa employee on an unpaid leave of absence rather than an employee of OC Transpo.

18It is clearly possible for an applicant, who is employed by a federally-regulated employer, to raise allegations of discrimination with respect to their employment where the alleged conduct arises from a provincially-regulated entity. If, for example, an employee with a federally-regulated employer went on a training program conducted by an external, provincially-regulated company, and the employee could not access the training session because it was held in an inaccessible building, the employee may have a claim against both the federally-regulated employer and the provincially-regulated service provider.

19In addition, if the applicant had secured a permanent position with the City of Ottawa, or if his discrimination allegations arose in relation to one of his temporary assignments with the City of Ottawa, the applicant may have been able to establish that his Application falls within provincial jurisdiction.

20However, in this case, the applicant’s allegations arise directly from the labour relations regime at OC Transpo and his status as an OC Transpo employee. OC Transpo employees access priority placement through a centralized human resource function at the City of Ottawa. This does not change the fact that the search for an alternative position is fundamentally a matter of labour relations which, in the case of OC Transpo employees, is governed by federal legislation.

21In this case the evidence establishes that despite the applicant’s belief that his relationship with OC Transpo had come to an end, his rights as an employee to priority placement and representation by the ATU were derived from his collective agreement and his ongoing status as an OC Transpo employee. At no time during the period for which he was on priority placement did the applicant successfully transition on a permanent basis into another position which would permit him, among other things, to become the member of another bargaining unit. Indeed, this fact is central to the applicant’s claim of discrimination.

22There is also insufficient evidence to establish that when the applicant was reinstated through the grievance process, the intention of the parties was to sever the applicant’s employment relationship with OC Transpo. The applicant’s own action in seeking assistance from the union when he was terminated a second time is incongruent with the belief that he no longer had the rights he would otherwise be entitled to as an OC Transpo employee.

23The City of Ottawa acknowledges that the applicant’s allegations as they relate to priority placement fall within federal jurisdiction and as a result, he is not without an avenue of recourse for his allegations. In all of the circumstances I find that the applicant remained an OC Transpo employee until his final termination and that his experiences with priority placement arise from the labour relations regime at OC Transpo. As a result, this Tribunal does not have jurisdiction over the subject-matter of the applicant’s allegations.

24Accordingly, the Application is dismissed.