Kernaghan v. Teamsters Local Union No. 879, 2016 HRTO 1157

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Tyler Kernaghan

Applicant

-and-

Teamsters Local Union No. 879

Respondent

DECISION

Adjudicator: Jay Sengupta Date: August 31, 2016 Citation: 2016 HRTO 1157 Indexed as: Kernaghan v. Teamsters Local Union No. 879

APPEARANCES

Tyler Kernaghan, Applicant Wade Poziomka, Counsel

Teamsters Local Union No. 879, Respondent Joanne L. McMahon, Counsel

Introduction

1This Application alleges discrimination and harassment with respect to employment because of disability and reprisal contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). Specifically, the applicant alleges that he revealed the existence of a disability and made a request that the respondent provide accommodation. He alleges that the respondent failed to accommodate his disability and that he was subjected to harassment and reprisal contrary to the Code.

2The respondent denies infringing the applicant’s rights and seeks dismissal of the Application.

3This Application was heard over a number of days in Hamilton, Ontario. The applicant testified on his own behalf. The Tribunal also heard from Janet Dsuban, a member of the staff of the respondent local, and Jim Chalmers and John McCann, current and former members of the executive of the local, on behalf of the respondent

4For the reasons that follow, the Application is dismissed.

the law

5The relevant sections of the Code are reproduced below:

5. (1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.

(2) Every person who is an employee has a right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.

8. Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing.

9. No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.

10. (1) … “disability” means,

(a) any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness and, without limiting the generality of the foregoing, includes diabetes mellitus, epilepsy, a brain injury, any degree of paralysis, amputation, lack of physical co-ordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment, or physical reliance on a guide dog or other animal or on a wheelchair or other remedial appliance or device,

(b) a condition of mental impairment or a developmental disability,

(c) a learning disability, or a dysfunction in one or more of the processes involved in understanding or using symbols or spoken language,

(d) a mental disorder, or

(e) an injury or disability for which benefits were claimed or received under the insurance plan established under the Workplace Safety and Insurance Act, 1997….

11. (1) A right of a person under Part I is infringed where a requirement, qualification or factor exists that is not discrimination on a prohibited ground but that results in the exclusion, restriction or preference of a group of persons who are identified by a prohibited ground of discrimination and of whom the person is a member, except where,

(a) the requirement, qualification or factor is reasonable and bona fide in the circumstances; or

(b) it is declared in this Act, other than in section 17, that to discriminate because of such ground is not an infringement of a right.

(2) The Commission, the Tribunal or a court shall not find that a requirement, qualification or factor is reasonable and bona fide in the circumstances unless it is satisfied that the needs of the group of which the person is a member cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.

the facts

6The applicant is a former business agent and secretary/treasurer of the respondent union local.

7He worked as a business agent for approximately 12 years before being elected into the role of secretary/treasurer. The evidence of Mr. Chalmers, who has also been employed as a full-time business agent while a member of the executive, was that business agents are paid a salary and members of the executive are paid a $150.00 a week stipend over and above their salary.

8The applicant was dismissed from his position as a business agent in March 2011.

9Despite his dismissal from the role of business agent, it appears that the applicant continued to be paid full wages by the respondent past his dismissal from the post of business agent in March, 2011, up to and during his disability-related leave that commenced in September, 2012 and lasting beyond the expiration of his term on the executive in December, 2012, for a further three weeks past the end date. It is also undisputed that he was also paid $45,000.00 in severance upon his departure.

10The parties agree that at the material time, stipulated by the parties to be the period between May 15, 2012 to his departure on sick leave in the fall of the same year, relations between the applicant and the rest of the executive and the staff working at the local had become strained.

11The respondent attributes the problems to the applicant’s conduct. Specifically, respondent witnesses testified that the applicant had made allegations of wrong-doing and misconduct against other members of the executive in a widely circulated letter sent to the stewards which he asked they post, and which he subsequently withdrew. This resulted in legal action being commenced against the applicant by other members of the executive.

12The respondent witnesses also point to the applicant’s behaviour towards the staff of the local in the Hamilton office, which they described as bullying and harassing, and that resulted in a grievance being filed by staff members. This, in turn, necessitated an investigation being commenced and the applicant being transferred to a satellite office in Thorold.

13The applicant’s view is that people on both sides of the dispute were responsible for the tension and that bad feelings against him were stoked and encouraged by members of the executive with whom he had disputes.

14The parties agree that any pre-existing disputes and harassing behaviour by either the applicant or members of the respondent executive as of May 15, 2012, were unrelated to Code grounds and, therefore, relevant only for the context in which the events that led to this Application took place.

15As such, it is not necessary for me to make findings of fact relating to the period before May 15, 2012, or determine responsibility for the reason there was ill will between the applicant and most of the people leading and working at the respondent local.

16Suffice it to say, the parties agree that by the time the applicant alleges he notified the respondent about the existence of a disability, sought accommodation and experienced harassment and reprisal, the atmosphere of tension and ill will between the parties was already present.

17In fact, as indicated above, the president and vice-president of the union, John McCann and Jim Chalmers, were involved in litigation with the applicant arising out of the letter the applicant sent to the membership and later withdrew accusing the former two of improprieties in the exercise of duties relating to their office.

18By May 15, 2012, the applicant had been transferred from the main office in Hamilton to a satellite office in Thorold. The respondent witnesses indicated that the move was necessitated by complaints made by the staff who had alleged that the applicant had engaged in bullying and harassing behaviour. The applicant believes it was an attempt to punish him.

19The applicant gave evidence that by May, 2012, the conflicts he had been embroiled in had taken a toll on his health. He was experiencing serious difficulties. He was depressed, had no energy, was experiencing problems with his sleep, grinding his teeth in the night, gaining weight and not doing the things he enjoyed doing before.

20Stress was affecting his body. He was experiencing bouts of neck pain, occasional stomach viruses and diarrhea. The stress was also affecting his marriage and family life. He had become more reclusive. He testified that working alone in the Thorold office made him feel isolated and worsened his medical condition.

21In his correspondence dated May 15, 2012, the applicant let the respondent know that he was dealing with “medical issues”, that he was on “medication” and that he would appreciate if Mr. McCann would stop demeaning him or copying Board members on email correspondence between them.

22The respondent takes the position that it was for the protection of both the applicant and Mr. McCann that all members of the board were copied on correspondence between the two men, given the ongoing litigation in which they were embroiled.

23The applicant also had a medical note dated May 22, 2012, that he testified was sent to the respondent local. He initially testified that he notified Mr. McCann about the existence of a disability by sending the note by fax to the Hamilton office. He testified that he knew he had sent it by fax because he had spoken to Ms. Dsuban, a member of staff, who confirmed that she received the fax and put it on Mr. McCann’s desk.

24Ms. Dsuban disputed the applicant’s version of events and denied having received a fax as described or having confirmed receipt of the fax to him during her testimony before the Board.

25Following the closing of the applicant’s case and Ms. Dsuban’s testimony, the applicant indicated he had just found a previously undisclosed document that he sought to introduce as an exhibit. It was an email sent by him to Mr. McCann, dated May 30, 2012, attaching the medical note of May 22, 2012 which indicated that the applicant was suffering from depression and anxiety. In the body of the email, the applicant indicated that he was able to complete all the tasks associated with his role as secretary/treasurer.

26Given the relevance to the issues in dispute, the Tribunal permitted the applicant to reopen his case, introduce the newly discovered document that had not been previously disclosed and change his testimony with respect to the method by which he had notified the respondent about the existence of a medical condition.

27His position, adopted mid-hearing, was that he had not, in fact, sent the document by fax as he had previously insisted, or had a conversation with Ms. Dsuban as described, but rather that he had made the respondent aware of his need for accommodation by email.

28Mr. McCann denied having received the May 30th email and gave evidence that, upon being told about an email having been sent, searched his computer and found an unopened email from the applicant. He testified he often left items received by electronic mail unopened and unread.

29On June 1, 2012, Mr. McCann sent an email indicating that “to date, (he is) unaware of any current staff members having any disability”. The applicant did not send any further communication to Mr. McCann to question this statement or point out that he had provided information on May 30, 2012 about his medical conditions.

30The applicant’s position is that he felt harassed and reprised against by the manner in which Mr. McCann was communicating with him and, as a result, did not respond to the June 1st email or follow up on his May 30th email.

31It is also worth noting that the applicant, Mr. McCann and Jim Chalmers were at the same location and involved in examinations for discovery on May 30 and 31 relating to the ongoing legal action between them. There is no dispute that the applicant did not discuss his May 30th email or the May 22nd doctor’s note with either person during those dates.

32The subsequent email exchanges between the parties are characterized by the applicant as harassment or reprisal.

33The respondent witnesses characterize the email communications as innocuous communication representing business as usual. They also reiterate that the reason for copying the entire board on communications was the ongoing legal action involving the applicant, Mr. McCann and Mr. Chalmers.

34The parties agree that the applicant was never moved back to the Hamilton office. He remained in the Thorold office and in September, sought and was granted time away when he requested it for reasons relating to his disability. As indicated above, he then remained away from both office locations until the end of his term on the executive on December 12, 2012.

decision

Credibility

35In assessing credibility, I have applied the traditional test set out by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354:

(…) Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he has seen and heard, as well as other factors, combine to produce what is called credibility….

The credibility of interested witnesses, particularly in cases of conflict of evidence cannot be gauged solely by the test of whether the personal demeanor of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of the witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions…. Again, a witness may testify to what he sincerely believes to be true, but he may be quite honestly mistaken. [Emphasis added].

36The applicant bears the onus of establishing on a balance of probabilities that he is a person with a disability as defined in the Code, that he disclosed a disability-related need for accommodation on or after May 15, 2012, that the respondent failed in its duty to take steps to ascertain what accommodation was necessary and to accommodate him and, finally, that he experienced harassment for reasons relating to his disability and reprisal contrary to the Code.

Applicant’s Position

37The applicant argues that as of May 15, 2012, the respondent knew or ought to have known that he had a disability within the meaning of the Code and that he was seeking accommodation of that disability. The respondent’s failure to provide that accommodation, he argues, amounts to discrimination on the basis of disability.

38The applicant suggests that he experienced both direct and indirect discrimination. He argues that he asked for accommodation and experienced continued harassment as a result of his request. He also argues that the respondent’s failure to consider that the requirement that the board needed to be informed of all interactions in situations like his had an adverse impact on him because of his mental health conditions is, by definition, discriminatory conduct.

39Further, the applicant argues that the respondent’s failure to make any inquiries as to the appropriate accommodations in the circumstances amounts to a breach of its procedural duty to accommodate which, he argues, is a free-standing duty. Therefore, he suggests that an infringement of his rights occurred even if there is a finding that there was no breach of the substantive duty to provide accommodation.

40He argues that the conduct of the executive of the respondent local for the period between May 15, 2012 and his departure from the local amounts to harassment and reprisal.

Respondent’s Position

41The respondent denies that the information provided by the applicant on May 15, 2012, amounted to notification of a disability or a request for accommodation. It argues that the terms “medical issues” and “medications” are ambiguous and do not necessarily signal the existence of a disability within the meaning of the Code.

42It takes the position that Mr. McCann did not know of the contents of the May 30th email until the hearing. In any event, the respondent argues, even if the respondent is found to have known about the May 30th email at the time, despite the attached medical note mentioning depression and anxiety, there is no request for accommodation contained in that communication, given that it contains an assurance from the applicant that he is completely able to perform his job as a member of the executive.

43In addition, the respondent argues that when the applicant received the June 1, 2012 email from Mr. McCann saying that he did not know of anyone in the local suffering from a disability, he should have followed up, and his failure to do so is relevant in any assessment of whether the respondent failed to take necessary steps.

Discrimination and Harassment on the Basis of Disability

44Providing an employer with information about the existence of an illness or a diagnosis of medical condition is not, by definition, equivalent to initiating a conversation about accommodation or requesting accommodation. It is not necessarily the case that the existence of an illness or a diagnosed medical condition requires that steps be taken in a workplace setting to accommodate an employee.

45In some circumstances, however, knowledge of an illness or diagnosed medical condition may trigger the procedural duty to accommodate. In Machado v. Terrace Food Lincoln Sales, 2011 HRTO 544 at para. 29, the Tribunal states:

The duty to accommodate was triggered by the applicant’s disclos[ure] of her disability as the reason for her tardiness.

46Assuming without finding that the respondent did receive both the May 15th and May 30th communications from the applicant at around the time they were sent, in my view, in the circumstances of this case, the respondent was not required to commence an inquiry into whether accommodation was being sought. The applicant disclosed the existence of unspecified “medical issues” in his first communication on May 15, 2012.

47The May 22, 2012 medical note, which he says he forwarded on May 30, 2012, is brief and to the point. It indicates a diagnosis of depression and anxiety and specifies the medication being taken by the applicant. In my view, this establishes that the applicant had a disability within the meaning of the Code. However, there is nothing in the May 30th email that is attached to the brief medical note that amounts to a request for accommodation that should have necessitated further action on the part of the respondent.

48In fact, the information sent by the applicant on May 30th, while providing information about the applicant’s medical conditions, also contained an assurance that the applicant was able to perform his remaining duties of secretary/treasurer and used the following language:

I have consulted with my doctor and can assure you that my ability to function in my capacity as Secretary-Treasurer is not compromised by my medical condition and medication.

49The applicant has argued that his emails were requests for accommodation. Specifically, in his email of May 15, 2012, he sought to have members of the executive of the respondent local, with whom he had been engaged in conflict and litigation for the past year, refrain from being critical of him in the performance of his duties and asked that the board not be copied on correspondence. He also indicated that he believed that “being stuck out here in Thorold (was) a direct cause of my medical condition” but did not ask in either email that he be returned to the Hamilton office.

50While I can accept that any interaction between Mr. McCann and the applicant would clearly be unwelcome to the applicant, given the protracted and serious dispute in which they were engaged, the applicant has not established a link between those interactions and his medical conditions. The cause of the dispute was historical and the parties agreed during the course of the hearing that there was no change in Mr. McCann’s behaviour after May15, 2012.

51The applicant, in arguing that he experienced harassing conduct and reprisals, points to emails in which Mr. McCann questions why the applicant is suggesting that his vacation request might cause an issue and one in which he notifies others in the organization that the applicant may be unavailable to conduct union business to ensure they are aware of the need for alternate coverage.

52In my view, the applicant’s view that the correspondence is “demeaning, belittling and bullying” is an overstatement and not supported by a plain reading of the documents. Accordingly, I find that the applicant has not established that he experienced harassment for reasons relating to his disability.

53I find that messages from the president of the executive to the secretary/treasurer requiring corrections of errors in spelling and grammar in email correspondence amount to a request to complete the basic functions of the role occupied by the latter.

54A request that Mr. McCann refrain from the practice cannot be viewed as a request for accommodation that would address a disability-related need and allow the applicant to function in his role with appropriate accommodation in place. It amounts to a request that the respondent refrain from requiring that the applicant perform essential tasks within his role.

55I also find that the request that the board not be copied on correspondence between Mr. McCann and the applicant cannot be viewed as a request for accommodation. In the circumstances of this case, given the ongoing conflict and litigation between Mr. McCann and the applicant, it is clear that the board was engaged in proper oversight of the relationship and was entitled to continuing to be involved in monitoring the communication for the protection of all involved.

56The applicant has not persuaded me that his anxiety and depression necessitated cutting the board’s oversight function in the troubled relationship between Mr. McCann and himself in order that he could properly perform his role as secretary/treasurer. He has made an unsubstantiated claim to that effect, unsupported by any credible evidence.

57The evidence does establish that time away from his duties as a secretary/treasurer for reasons relating to his disability was readily available when requested and his medical leave was administered by a third party.

58Accordingly, I am not persuaded that the respondent breached either its substantive or procedural duty to accommodate the applicant to the point of undue hardship.

Reprisal

59In order to establish that the applicant was subject to reprisal contrary to the Code, he must establish, on a balance of probabilities:

• An action taken against, or a threat made to, him;
• that the action or threat is related to him having claimed or attempted to enforce a right under the Code; and
• An intention on the part of the respondent to retaliate for the claim or attempt to enforce the Code protected right.

See Noble v. York University, 2010 HRTO 878 at paras. 31-33.

60The applicant describes the conduct of the respondent as “demeaning, belittling and bullying”. I find, having reviewed the email correspondence between the parties, that the applicant’s description is unwarranted. The reasons for that finding are set out in the analysis concerning harassment (above).

61The applicant has not established on a balance of probabilities the first of the three elements required to establish reprisal under the Code has been met. It is not necessary, therefore, to turn to the remaining two elements. As such, the applicant has not established that he experienced reprisal contrary to the Code.

62Accordingly the Application is dismissed.