Dempsey v. Ontario (Treasury Board Secretariat), 2015 HRTO 827

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Michael Dempsey

Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by Treasury Board Secretariat

Respondent

INTERIM DECISION

Adjudicator: Dawn J. Kershaw

Date: June 22, 2015

Citation: 2015 HRTO 827

Indexed as: Dempsey v. Ontario (Treasury Board Secretariat)

WRITTEN SUBMISSIONS

Michael Dempsey, Applicant

Self-represented

Her Majesty the Queen in Right of Ontario, as represented by the Treasury Board Secretariat, Respondent

Omar Shahab, Counsel

Introduction

1This Application alleges discrimination with respect to employment because of disability and age contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code").

2On April 17, 2015, the respondent filed its Response requesting that the Application be dismissed on a preliminary basis as premature.

3In a May 14, 2015 Case Assessment Direction ("CAD"), the Tribunal advised the parties that the Application may be premature and outside of the Tribunal's jurisdiction because it fails to identify any specific acts of discrimination within the meaning of the Code allegedly committed by the respondent, and the applicant has not experienced any discrimination under the Code.

4The CAD directed the applicant to provide any further written submissions responding to these issues within 14 days of the date of the CAD, which he provided on May 28, 2015.

submissions

5The applicant alleges he has been discriminated against in employment due to his age and disability by the respondent's proposal to amend the collective agreement. Specifically, the applicant refers to a proposal made by the respondent in a November 20, 2014 document entitled "Employer Proposals For Amendment of the Collective Agreement (expiring December 31, 2014) Between The Crown in Right of Ontario as Represented By Management Board of Cabinet And the Ontario Public Service Employees Union (OPSEU)".

6More specifically, the applicant refers to page 4 of the document where it states that "LTIP benefits and coverage cease when an employee reaches their earliest unreduced pension (i.e. Factor 90, 60/20 and age sixty-five [...]" ("the proposal"). He explains that LTIP stands for Long-term Income Protection for disabled individuals, and that he receives these benefits.

7The applicant alleges the effect of this proposal is discriminatory against disabled persons. He alleges it provides that if a person is on sick leave, the respondent will force that person with a disability to retire early from the workplace, which he alleges means the respondent avoids its obligation to provide accommodated work to persons with a disability.

8The applicant further alleges the respondent's proposal constitutes an "announced intention to discriminate". He submits that persons without disabilities are not the target of a forced early retirement.

9The respondent submits under the current collective agreement an employee who qualifies for LTIP gets those benefits until the age of 65. The respondent submits that on November 20, 2014, the respondent made a number of opening proposals to OPSEU [of which the applicant is a member]. The proposal in question is that OPSEU agree that LTIP benefits and coverage cease when an employee reaches his or her earliest unreduced pension date. The proposal has not been accepted as yet by OPSEU.

10The respondent submits not only has the applicant not experienced any discrimination because he has not been denied any LTIP entitlement based on his qualifying for an unreduced pension, but also the respondent has not taken any tangible steps to implement the proposal, nor does it plan to do so at this point in time. In addition, the proposal has not been accepted by OPSEU.

11The respondent further alleges the alleged discrimination of which the applicant complains is hypothetical and may never materialize. It asks that the Application be dismissed as being premature.

12The applicant counters that the Application should not be dismissed because he alleges the respondent has infringed his rights under Part 1 of the Code by violating section 13 of the Code as follows:

A right under Part I is infringed by a person who publishes or displays before the public or causes the publication or display before the public of any notice, sign, symbol, emblem, or other similar representation that indicates the intention of the person to infringe a right under Part I or that is intended by the person to incite the infringement of a right under Part I..

13The applicant submits the determinative factor is not that the proposal has materialized but that it was announced, which amounts to a publication or display.

14The applicant submits the Application is not premature, and submits the Tribunal should apply the case of Rorabeck v. Sears Canada, 2009 HRTO 1388 ("Rorabeck"), in which the Tribunal held even though the applicant had not yet applied for or been denied benefit coverage; had not been affected by the amendments made to the post-retirement benefits; and that his eligibility was contingent on future events (in that case, the applicant's retirement), the Tribunal nonetheless could determine whether the amendments were discriminatory, and it was appropriate to proceed to a merits hearing.

decision and analysis

15I would dismiss this Application for the reasons that follow, but with respect to the issue of an alleged violation of s. 13 of the Code, the applicant should have the opportunity to make oral submissions consistent with s. 43(2)1 of the Code as follows:

The rules shall ensure that the following requirements are met with respect to any proceeding before the Tribunal:

1. An application that is within the jurisdiction of the Tribunal shall not be finally disposed of without affording the parties an opportunity to make oral submissions in accordance with the rules.

16While I agree with the applicant that it may not be appropriate to dismiss an Application simply for the reason that the applicant has not yet been affected by changes made to a benefits scheme as in Rorabeck, the instant case is distinguishable because not only have the potential future events not taken place, but the proposal has not yet even been agreed to or implemented. It may never be implemented and was put forward only as a proposal during the opening stages of collective bargaining.

17On that basis alone, this aspect of the Application is premature and should be dismissed as being outside the Tribunal's jurisdiction. However, the applicant argues that his rights under section 13 of the Code have been infringed. This allegation is, at minimum, jurisdictional, and so he is entitled to an opportunity to make oral submissions. The focus of the remaining inquiry will be on the legal basis for the applicant's claim and whether or not the respondent's proposal, made as part of collective bargaining, falls within the scope of s. 13 or can be said to constitute a "publication or display before the public of any notice, sign, symbol, emblem, or other similar representation that indicates the intention of the person to infringe a right under Part I".

Next Steps AND DIRECTIONS

18The Registrar will schedule a half-day preliminary hearing by conference call. The parties will receive a notice of hearing, setting out the time, date and telephone numbers for the hearing. Although scheduled for a half-day, not all preliminary hearings require a half-day to complete.

19As I have indicated above, I anticipate that the focus of the preliminary hearing will be legal argument on whether the remaining allegation falls within the scope of s. 13. For this reason, I do not anticipate that evidence will be required. However, if the parties have cases they wish to rely on they shall deliver to each other and file with the Tribunal copies of these no later than 35 days after the date of this interim decision. It will be up to the Vice-chair to determine the length of the hearing and how the hearing is conducted.