Greaves v. Toronto Transit Commission, 2015 HRTO 733

Human Rights Tribunal of Ontario

Between:

Jeffrey Greaves Applicant

-and-

Toronto Transit Commission Respondent

-and-

Amalgamated Transit Union, Local 113 Intervenor

Interim Decision

Adjudicator: Mark Hart Date: June 4, 2015 Citation: 2015 HRTO 733 Indexed as: Greaves v. Toronto Transit Commission

Appearances

Jeffrey Greaves, Applicant Self-represented

Toronto Transit Commission, Respondent Patricia Matusiak, Counsel

Amalgamated Transit Union, Local 113, Intervenor Alanna Mihalj, Counsel

1This is an Application dated July 4, 2014 alleging discrimination with respect to employment because of disability, record of offences, association with a person identified by a protected ground and reprisal, contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code").

2By Case Assessment Direction dated December 4, 2014, the Tribunal granted the respondent's request for a summary hearing to determine whether this 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.

3The summary hearing in this matter was held by teleconference on March 20, 2015, and I have considered the materials submitted by the parties for the purpose of the summary hearing and their oral submissions.

The Summary Hearing Process

4A summary hearing gives the applicant an opportunity to more fully explain the allegations contained in the Application and to hear argument from the parties before the Tribunal makes its decision about whether all or part of the Application has no reasonable prospect of success.

5Rule 19A of the Tribunal's Rules of Procedure sets out specific guidelines for this type of hearing and it is important because the procedures for a summary hearing are slightly different than other types of preliminary hearing issues. Most importantly, the parties are not expected or required to submit documents or call witnesses to testify for the purpose of a summary hearing.

6Unlike other preliminary matters, which are determined on a "balance of probabilities", the test the Tribunal applies at a summary hearing is whether an application has "no reasonable prospect of success." If, after examining the allegations and hearing the parties' submissions, the Tribunal determines that an application has no reasonable prospect of success, it will be dismissed. If the Tribunal does not dismiss an application, it will continue in the Tribunal's process. In some cases, the Tribunal may find that only part of the application will move ahead, while part of it is dismissed.

7In the instant case, the Tribunal directed that a summary hearing be held on the basis that the applicant may be unable to prove that there is a connection between what the respondent is alleged to have done and the grounds cited in the Application. That is, although the applicant may believe that the conduct of the respondent is connected to a prohibited ground in the Code, it is not clear that there is evidence available to the applicant to prove the connection. The focus of this inquiry is on the evidence the applicant has or may be reasonably available to him.

8At a summary hearing, the Tribunal assumes the facts alleged by the applicant to be true. For example, if an applicant alleges they were fired from their employment or denied a service, the Tribunal will assume this to be true for the purposes of the summary hearing. However, accepting that someone experienced adverse treatment does not include accepting the applicant's assumptions or belief about why they were treated this way.

9The purpose of the summary hearing is to determine if there is evidence available to support the applicant's belief that the disadvantageous treatment he experienced arises from discrimination. In order to warrant proceeding to a full hearing of the merits, some evidence must exist which goes beyond the applicant's feeling or belief that a prohibited ground of discrimination played a role in what he or she experienced. As noted above, the parties do not submit evidence for the purposes of the summary hearing. However, the applicant should be prepared to explain to the Tribunal what the proposed evidence will be if the Application is allowed to proceed to a hearing on the merits.

10The proposed evidence may come in a variety of forms, either as direct or circumstantial evidence. Circumstantial evidence is evidence arising from the circumstances surrounding the alleged discriminatory treatment that might lead the Tribunal to infer that the alleged disadvantageous treatment was linked to a prohibited ground. However, if the applicant is unable to point to evidence, beyond their own assumptions or belief, an application may be found to have no reasonable prospect of success and be dismissed. The Tribunal is generally mindful of the fact that in some cases an application should proceed further in the hearing process because the respondent is the party who has control over the evidence by which the applicant might prove his or her case.

11While the primary focus in the summary hearing is on the applicant's proposed evidence, the respondent's allegations may also be considered where the facts are not in dispute or where it is plainly obvious that a fact must be true. However, the Tribunal is careful to ensure that an application is not dismissed at the summary hearing stage simply because the respondent has an alternative explanation of the events.

Allegation Re Discrimination Because of "Record of Offences"

12At the summary hearing, I explained to the applicant that the ground of "record of offences" is defined in the Code to mean a conviction for a criminal offence for which a pardon has been granted or for any provincial offence. I explained that this ground does not apply, for example, to an employee's disciplinary record with his employer. I noted that the Application does not contain any reference to the applicant having been convicted of a criminal or provincial offence and having suffered some adverse consequence as a result. After hearing this explanation from me, the applicant agreed that the ground of "record of offences" did not apply to his case. Based upon the applicant's acknowledgement, I find that the allegation of discrimination in employment because of "record of offences" has no reasonable prospect of success and is dismissed.

Allegation Re Association With a Person Identified by a Protected Ground

13At the summary hearing, I also explained to the applicant that the protection under the Code against discrimination because of association with a person identified by a protected ground serves to protect, for example, an employee from being subjected to adverse consequences because he associates with someone of a particular race, creed, gender, sexual orientation or other protected ground under the Code. I noted that in the Application, no specifics are provided as to the basis upon which the applicant is claiming that he was subjected to adverse consequences because of his association with someone identified by a protected ground. After hearing this explanation from me, the applicant once again agreed that the protection against discrimination because of association did not apply to his case. Based upon the applicant's acknowledgement, I find that the allegation of discrimination in employment because of association with a person identified by a protected ground has no reasonable prospect of success and it is dismissed.

Allegation Re Reprisal

14With regard to the reprisal allegation, I explained to the applicant that this is a very specific protection under the Code where someone experiences adverse consequences because he sought to claim or enforce his rights under the Human Rights Code. I noted that in the Application, no specifics are provided as to when the applicant is alleging that he sought to claim or enforce his rights under the Code and how he alleges that he experienced any adverse consequence as a result. In his oral submissions, the applicant acknowledged that he did not say to anyone in management at the respondent Toronto Transit Commission ("TTC") that his Code rights were being violated at any time prior to filing the Application. Given the applicant's acknowledgement that he had not sought to claim or enforce his Code rights prior to the filing of the Application and as this is an essential element required to prove reprisal under the Code, I find that the reprisal allegation has no reasonable prospect of success and it is dismissed.

Allegations Re Discrimination Because of Disability

15This leaves the applicant's allegation of discrimination in employment because of disability. In summary, the applicant is a long-serving TTC employee who states that he slipped into a severe depressive state in August 2011 and was diagnosed with clinical depression. Due to this medical condition, the applicant was off work for an extended period of time during the remainder of 2011 and in 2012. At some point following the applicant's return to work after this extended absence, the applicant was placed in the TTC's attendance management program. During the period from July 4, 2013 (which is one year prior to the filing of the Application) to July 4, 2014 (when the Application was filed), the applicant was required to attend nine meetings under the attendance management program. Each meeting generally was triggered by an absence in the period immediately prior to the date of the meeting. In most instances, the applicant acknowledged that the absences immediately preceding any particular meeting were not related to his clinical depression, but were for a variety of other non-disability related reasons. The applicant acknowledged that there was nothing specifically that occurred at any of these meetings that he is alleging was discriminatory, but recognized that these meetings were being conducted in accordance with TTC protocol.

16Rather, the allegation being raised by the applicant relates to the requirement that he attend such meetings at all after every occasion when he was required to be absent from work. The applicant alleges that this was because he was being targeted as a result of his depression, with a view to driving him out of the workforce. The applicant, however, was unable to point to any specific evidence to support this allegation other than the fact that he was required to attend these meetings after every absence.

17At the same time, having reviewed and considered the materials before me, I am satisfied that there is a sufficient basis to indicate that the applicant's absences due to his disability, namely depression, may have factored into both the requirement for him to be part of the TTC's attendance management program and his progress through the program to the point where he was given a final disciplinary warning. This warning included an expectation that was placed upon him by memo dated May 28, 2014 that he maintain an attendance level no worse than the TTC branch average rate of three incidents and/or fifteen days of absence in any moving twelve month period, such that his employment would be terminated if he did not maintain the expected level of attendance. I appreciate that in this memo, TTC management recognizes its obligation to accommodate any absences associated with an ongoing medical condition under the Code. However, my concern relates to the fact that disability-related absences may have contributed to the applicant being placed in this position in the first place.

18As I read the TTC's Absence from Work Procedures appended to the collective agreement, specific action points are identified on the basis of the number of incidents of absence in the preceding twelve month period. A meeting is required after four incidents of absence, which is not documented and is for the purpose of raising awareness of the issue and sharing information with the employee. Further meetings are mandated after the fifth, sixth and seventh incidents of absence for the purpose of counselling, and the seventh incident may result in a referral for a health assessment. After the eighth incident, TTC management may consider imposing conditions of continued employment.

19The applicant's first documented absence attendance interview took place on September 11, 2013, and makes reference to 14 incidents of absence totalling 102.5 days from September 11, 2012 to September 10, 2013, including a recent two day absence starting September 9, 2013. While the two day absence immediately preceding this meeting was unrelated to the applicant's depression, it appears from the TTC's own records that at least seven incidents of absence over the preceding year totalling at least 77 days were related to the applicant's disability.

20This pattern continued over the next several absence attendance interviews with the applicant. On October 30, 2013, the applicant was interviewed again following a four day absence from October 22 to 25, 2013 which was unrelated to his depression. However, the memo documenting this meeting makes reference to 14 incidents of absence over the preceding twelve months, of which seven were related to the applicant's depression for a total of 77 days of absence. A further absence attendance interview was conducted on November 26, 2013, following a five day absence that was unrelated to the applicant's disability. However, once again, the memo documenting this meeting makes reference to 15 incidents of absence totalling 67 days over the preceding year, of which six are shown as related to the applicant's depression for a total of 39 days. The applicant was interviewed again on December 20, 2013 following a two day absence that was unrelated to his depression. But again the memo makes reference to 14 incidents of absence totalling 57.5 days over the preceding twelve months, of which six are shown as related to the applicant's disability for a total of 39 days.

21The applicant was next interviewed in relation to his absenteeism on February 11, 2014. This followed two incidents of absence, each for two days, from January 30 to February 1, 2014 and then from February 6 to 8, 2014. On the face of the TTC's own records, these absences are shown as being related to the applicant's disability. Moreover, the memo documenting this meeting makes reference to 14 incidents of absence totalling 55.5 days over the preceding twelve months, of which eight are shown as related to the applicant's disability for a total of 32 days. The memo also includes a listing of the applicant's absences dating back to September 20, 2012, which includes an additional three incidents of absence related to the applicant's disability for a total of an additional 49 days of absence.

22The interview on February 11, 2014 was followed by an At Work Health Assessment conducted on February 14, 2014. By memo dated February 24, 2014, TTC management documented that the results of the At Work Health Assessment indicated that the applicant had an ongoing medical condition, but that his attendance would not be affected by this condition. The applicant says that he said this to the doctor not because it was true, but because he thought he needed to say this in order to maintain his employment.

23A further absence interview was conducted on May 8, 2014, following an eight day absence that was not related to the applicant's disability. However, the memo documenting this meeting makes reference to 13 incidents of absence totalling 53.5 days over the previous year, of which nine are shown as being related to the applicant's ongoing medical condition for a total of 36 days. A further interview was conducted on May 27, 2014 which does not appear to have been precipitated by any further incident of absence. The memo documenting this interview includes reference to the same incidents of absence as the previous memo.

24This led to the final warning being issued at a meeting on May 28, 2014. The memo documenting this meeting includes reference to the applicant's absence history dating back to 2009, which includes significant periods of absence in 2011 and 2012 that may be related to the applicant's disability. The memo also specifically references the applicant as having had 12 incidents of absence totalling 48 days over the previous year, of which five relate to the applicant's disability for a total of 33 days.

25The issues under the Code that appear to arise from these circumstances are:

a. Does it constitute discrimination in employment because of disability for the applicant to have been placed into the TTC's absence management program and required to attend a succession of interviews on the basis of incidents of absence that may have included disability-related absences?

b. Specifically with relation to the February 11, 2014 interview, does it constitute discrimination in employment because of disability for the applicant to have been called in for an interview and moved one step further in the attendance management process on the basis of an absence that may have been related to his disability?

c. Does it constitute discrimination in employment because of disability for the TTC to have given the applicant a final warning and subjected him to an expectation to meet a twelve month rolling average or have his employment terminated, if the absenteeism record relied upon to take this action included absences due to the applicant's disability?

26I am well aware that an employer has the right to expect that its employees attend work and that there are limits to the duty to accommodate an employee's disability where the disability results in significant and ongoing absenteeism. The test in such circumstances was articulated by the Supreme Court of Canada in Hydro-Québec v. Syndicat des employé-e-s de techniques professionnelles et de bureau d'Hydro-Québec, section locale 2000 (SCFP-FTQ), 2008 SCC 43, [2008] 2 SCR 561 at paras. 17 to 19:

. . . in a case involving chronic absenteeism, if the employer shows that, despite measures taken to accommodate the employee, the employee will be unable to resume his or her work in the reasonably foreseeable future, the employer will have discharged its burden of proof and established undue hardship.

Thus, the test for undue hardship is not total unfitness for work in the foreseeable future. If the characteristics of an illness are such that the proper operation of the business is hampered excessively or if an employee with such an illness remains unable to work for the reasonably foreseeable future even though the employer has tried to accommodate him or her, the employer will have satisfied the test. In these circumstances, the impact of the standard will be legitimate and the dismissal will be deemed to be non-discriminatory. I adopt the words of Thibault J.A. in the judgment quoted by the Court of Appeal, Québec (Procureur général) v. Syndicat de professionnelles et professionnels du gouvernement du Québec (SPGQ), [2005] R.J.Q. 944, 2005 QCCA 311: [translation] "[In such cases,] it is less the employee's handicap that forms the basis of the dismissal than his or her inability to fulfill the fundamental obligations arising from the employment relationship" (para. 76).

The duty to accommodate is therefore perfectly compatible with general labour law rules, including both the rule that employers must respect employees' fundamental rights and the rule that employees must do their work. The employer's duty to accommodate ends where the employee is no longer able to fulfill the basic obligations associated with the employment relationship for the foreseeable future.

27I appreciate that the test articulated by the Supreme Court was developed in the context of an employee whose employment had been terminated, as opposed to here where the applicant was subjected to a final warning and then subsequently retired. But in my view, the resolution of the issues that arise in this case as identified above and the question of how the test articulated by the Supreme Court applies in the instant case are matters not appropriate for determination at the summary hearing stage, but require a full hearing and consideration of the evidence presented at the hearing by all parties.

28In its submissions, the respondent referred me to this Tribunal's decisions in Rehman v. Waterloo (Municipality), 2014 HRTO 875 and Klonowski v. Ontario (Community Safety and Correctional Services), 2012 HRTO 1568, for the proposition that the Code does not prohibit an employer from counselling employees about their failure to maintain regular attendance at work where the employer is otherwise meeting its duty to accommodate disability-related absences. However, in Rehman, the issue related to one e-mail sent by the applicant's supervisor counselling him about his attendance. In Klonowski, the applicant was required to attend one non-disciplinary meeting regarding her attendance. In contrast, the applicant was required to attend nine meetings, received a final warning, had an expectation imposed that he would meet the TTC average for attendance, and was told that his employment would be terminated if he failed to do so.

29I also note that the decision to dismiss the application in Klonowski at the summary hearing stage followed a Grievance Settlement Board hearing that had consolidated 805 grievances regarding the Ministry's attendance management program. Following the hearing, the Board ordered the Ministry to preclude the consideration of absences that flow from a disability as defined by the Code for the purpose of its attendance management program and to exercise reasonable discretion to deal with non-culpable absenteeism on a case-by case basis at progression through the levels of the program.

30Finally, the applicant raises an issue regarding an absence on June 17, 2014 when he claimed an emergency leave day. The applicant alleges that he was reprimanded for doing so. The respondent takes the position that the applicant was not reprimanded but was merely required to submit documentation to support his absence pursuant to the employer's entitlement under s. 50(7) of the Employment Standards Act. In my view, this issue is best resolved between the parties on the basis of evidence provided at the hearing, including whether any action taken by the respondent was related to the applicant's disability.

31Accordingly, I am unable to find that the allegations of discrimination in employment because of disability have no reasonable prospect of success. As a result, these allegations are not dismissed.

Mediation

32I note that in its Response, the respondent has indicated that it is willing to participate in the Tribunal's mediation process to try to resolve this matter. The applicant has not indicated whether he agrees to mediation in the Application as filed. In my view, particularly in light of the fact that the applicant is now retired and given the limited remedy he has claimed in the Application, mediation would be an appropriate next step for all parties. The applicant is directed to advise within 14 calendar days of the date of this Decision whether he is willing to participate in the Tribunal's mediation process.

Order

33For the foregoing reasons, I hereby make the following order:

a. The Application is dismissed as having no reasonable prospect of success in relation to the cited grounds of record of offences, association with a person identified by a Code ground, and reprisal;

b. The Application shall proceed as it relates to the allegations of discrimination in employment because of disability; and

c. The applicant shall advise the Tribunal and the respondent within 14 calendar days of the date of this Decision whether he is willing to participate in the Tribunal's mediation process.