Bradshaw v. Complex Services Inc., 2016 HRTO 758

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Chris-Ann Bradshaw Applicant

-and-

Complex Services Inc. Respondent

-and-

UNIFOR Intervenor

INTERIM DECISION

Adjudicator: Brian Cook Date: June 3, 2016 File Number: 2014-16873-I Citation: 2016 HRTO 758 Indexed as: Bradshaw v. Complex Services Inc.

APPEARANCES

Chris-Ann Bradshaw, Applicant Self-represented

Complex Services Inc., Respondent Simon Mortimer, Counsel

UNIFOR, Intervenor Piper Henderson, Counsel

1These Applications allege discrimination with respect to employment and services because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code").

2The background to this matter is set out in Interim Decision Bradshaw v. Complex Services Inc., 2015 HRTO 338.

3The hearing reconvened in St. Catharines on April 4, 2016. The applicant was present. Joanne Sheehan, who was a union steward during some of the time relevant to the Applications was present as a witness for the applicant. The respondent Complex Services Inc. ("the employer") was present and represented by Simon Mortimer, counsel. Mike Menicanan, the current UNIFOR Local representative, was present on behalf of UNIFOR ("the union") and UNIFOR was represented by Piper Henderson, counsel. I heard evidence from the applicant, Ms. Sheehan, and Mr. Menicanan. I did not hear oral evidence from the employer. I heard submissions from the applicant, Mr. Mortimer and Ms. Henderson.

4The issues identified for this hearing were as follows:

1. Should the remaining allegations against UNIFOR be dismissed as having no reasonable prospect of success?
2. Has the substance of the Applications or a part of the Applications been appropriately dealt with by decisions of labour Arbitrators?
3. Clarification of the allegations regarding the period from 2012 to the end of the applicant's employment.

5Near the conclusion of the hearing, the applicant raised a further issue concerning the status of various grievances that were filed in the past and that may not have been dealt with in the grievance procedure. This issue was canvassed at the hearing and I provided direction which is recorded in this Interim Decision.

The remaining allegations about UNIFOR

6Given the amendments to the Application, the Interim Decision of March 17, 2015 could not deal with the allegations against UNIFOR with respect to the events following the applicant's termination. As such, those allegations remained live for the hearing on April 4, 2016, while the remainder of the allegations generally against UNIFOR were dismissed.

7At the hearing, the applicant clarified that she does not allege that UNIFOR did anything that was discriminatory or that infringed her Code-protected rights. She explained that her primary complaint about UNIFOR was that she believes that union officials were responsible for, or contributed to delays in having her issues properly dealt with. She agreed that this really reflected a difference of opinion between herself and her union about the most effective strategy to be followed in the grievance proceedings.

8The union's role in the termination of the applicant's employment was also canvassed. The applicant clarified this point and stated that she asked the union to not file a grievance in respect of the termination because she preferred to pursue that issue at this Tribunal rather than through a grievance. As discussed in more detail later in this Interim Decision, the union did file a grievance with respect to her termination because it wanted to protect the applicant's rights under the collective agreement. However, this grievance was withdrawn as part of a settlement which explicitly recognized the applicant's right to continue her case at this Tribunal in regard to allegations about the termination of her employment.

9After hearing these clarifications, I determined that the remaining allegations against UNIFOR should be dismissed as having no reasonable prospect of success, and, in particular, because there was no allegation of discrimination contrary to the Code with respect to things that were done or not done by the union.

10I provided an oral ruling on this at the hearing. Following that ruling, the union asked that it be granted status as an intervenor in the hearing. Ms. Piper indicated that the union's interest as an intervenor was to protect the collective agreement and to be available to assist the Tribunal with relevant information. This request was not opposed and was granted.

Background

11Following a number of workplace issues, the applicant was off work on a sick leave beginning in June 2010. She returned to work on April 25, 2011, but was placed off work again on June 13, 2011. She has not worked for the employer since that time. The union filed a grievance in respect of those events. The employer also filed a grievance, which was characterized as relating to medical accommodation issues. These grievances eventually came before an Arbitration Panel chaired by George Surdykowski.

12The Panel issued a 58 page decision on February 22, 2012. It denied the union's grievance. The Panel supported the employer's grievance and found that the applicant had not co-operated in the return to work and accommodation process by refusing to provide sufficient evidence to allow the employer to accommodate her during the return to work process. The Panel issued directions to ensure that appropriate medical information was available. This included an Independent Medical Review and the Panel endorsed Dr. Hy Bloom as the appropriate reviewer. Dr. Bloom was to receive and review copies of the applicant's medical records and answer questions about the applicant's ability to return to work.

13This arrangement broke down because of disagreements about the extent of the documents that would be sent to Dr. Bloom and what questions Dr. Bloom would address.

14The arbitration hearing reconvened on February 14, 2013. Following that day, Arbitrator Surdykowski issued a letter dated February 15, 2013, stating that at the hearing, the grievor had agreed to sign a consent form to release medical documentation to Dr. Bloom. The arbitrator expressed the hope that this would allow the process to continue to a successful return to work but issued no further directions.

15The applicant signed a Consent on February 14, 2013. However, on April 9, 2013, she revoked that consent. This was explained in an email to Dr. Bloom and copied to the workplace parties, stating in part:

This email is to inform you that as of today's date all further consent is now revoked with respect to all consent forms concerning the IMR [Independent Medical Review] forwarded to Dr. Hy Bloom up to and including the consent form signed and dated February 14, 2013.

The reason that consent is being revoked is due to the consent form signed on February 14, 2013 clearly stated that when Dr. Bloom's report was released to the employer it was also to be released to myself. Dr. Bloom failed to release his report to me as was clearly stated in the consent form concerning IMR that was signed.

16Dr. Bloom then issued a redacted report. He indicated that based on the limitations on the documents because of the applicant's revoked consent, he could not reach any clear conclusions. The employer took the position that because of the redactions, it did not know enough information to resolve any return to work issues.

17There were then ongoing discussions about a different medical assessment or review but the parties were unable to agree on a process.

18On November 18, 2013, the respondent terminated the applicant's employment.

The allegations against the employer and section 45.1 of the Code

19Section 45.1 of the Code provides as follows:

45.1 The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.

20The Tribunal has consistently found that an arbitration process is "another proceeding" for the purpose of section 45.1. In my view, the February 22, 2012 decision of the Arbitration Panel appropriately dealt with the substance of the Applications that relate to allegations of a failure to accommodate the applicant and/or to return her to work between June 2010 up to the time of the February 22, 2012 decision to terminate her employment.

21I appreciate that the applicant continues to believe that the Arbitration Panel failed to properly understand her concerns, that the process followed was flawed, and that the Arbitration Panel's conclusions were wrong. However, there can be no doubt that the Panel understood the issues in the case before it and made determinations about the allegations relating to the Code. The fact that the applicant disagrees with those determinations is not a basis to find that the Panel did not appropriately deal with the substance of the allegations on the issues that were before the Panel.

22For these reasons, the allegations relating to a failure to accommodate the applicant for any period up to February 2012 are dismissed because of section 45.1 of the Code.

Allegations about the period after February 2012

23The Arbitration Panel issued directions about what was to happen after February 2012 and the hearing was reconvened in February 2013. The February 2012 decision and the February 2013 letter from Arbitrator Surdykowski are important in assessing what happened after February 2012 but it cannot be said that the arbitration proceedings appropriately dealt with the substance of the Application relating to events after February 2012 or with the termination of the applicant's employment.

Earlier grievances

24At the hearing, the applicant indicated that she believes that there are allegations about human rights issues that were raised in earlier grievances which were not resolved or otherwise dealt with and that relate to some of the Applications she has filed with this Tribunal.

25As discussed at the hearing, if the applicant wishes to pursue these matters, she must do the following:

1. Identify what grievances she believes have not been resolved and what allegations they relate to.
2. Identify the Application to which these allegations relate and where in those Applications the unresolved issues were identified as human rights issues.
3. Identify what remedy the applicant seeks in relation to these issues.

26The applicant must provide this clarification by June 13, 2016.

Reconvening of the hearing

27Although there was discussion at the hearing about the possibility that the hearing could reconvene by telephone, I find that the best approach is for the hearing to reconvene for a one-day in person hearing, to hear evidence and submissions from the employer and further evidence and submissions from the applicant about the events after February 2012, up to and including the termination of the applicant's employment. The union may also make submissions on these issues as appropriate.

28The Registrar will schedule a one-day in person hearing. The parties may file any additional documents or witness statements at least three weeks before the hearing date.