Salisbury v. Independent Electricity System Operator, 2017 HRTO 1440

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Gavin Salisbury Applicant

-and-

Independent Electricity System Operator and Financial Services Commission of Ontario Respondents

INTERIM DECISION

Adjudicator: Mark Hart Date: November 1, 2017 Citation: 2017 HRTO 1440 Indexed as: Salisbury v. Independent Electricity System Operator

APPEARANCES

Gavin Salisbury, Applicant Wade Poziomka, Counsel

Independent Electricity System Operator, Respondent Pamela Hofman, Counsel

Financial Services Commission of Ontario, Respondent Padraic Ryan and Reesha Hosein, Counsel

1This is an Application filed on June 17, 2016 alleging discrimination with respect to employment because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2In brief, the applicant alleges that the refusal by the respondent Independent Electricity System Operator (“IESO”) to pay out the commuted value of his pension following the termination of his employment, and the failure of the respondent Financial Services Commission of Ontario (“FSCO”) to require the IESO to do so, constitutes adverse effect discrimination against him because of his disability.

3By Case Assessment Direction (“CAD”) dated October 26, 2016, this matter was referred to a summary hearing to determine whether the Application should be dismissed as having no reasonable prospect of success.

4The summary hearing was held before me by teleconference on June 16, 2017, at which time I heard the parties’ oral submissions on the issue of reasonable prospect of success. I also have considered all material that was filed with the Tribunal for the purpose of the summary hearing, as identified by me at the outset of the hearing.

5Shortly prior to the summary hearing, the applicant retained legal counsel. For the purpose of the summary hearing, applicant counsel prepared written submissions that were disclosed to the respondents on the evening before the summary hearing. Given their late receipt of these written submissions, the respondents requested a further opportunity to file written submissions following the summary hearing, which I granted. By correspondence from IESO counsel dated June 23, 2017, the IESO advised of its intention also to address the issue of delay in its written submissions, which I granted by CAD dated July 10, 2017. Written submissions were filed by all parties in accordance with the schedule set at the summary hearing, with the last submissions received on August 8, 2017.

6Before proceeding to address the issues of reasonable prospect of success and delay, I note that at the summary hearing, the applicant withdrew his allegation of reprisal against the respondents.

BACKGROUND

7The applicant was employed at the IESO as an engineer / officer – systems in the technical support group of the IESO’s information technology department from August 15, 2005 until his employment was terminated on November 20, 2014. As an employee, the applicant was a member of the IESO pension plan. He also was a member of a union, the Society of Energy Professionals.

8The applicant states that he is a person with a disability. In July 2014, the applicant filed an application with this Tribunal alleging that the IESO had failed to accommodate his disability-related needs. This application remained outstanding at the time the applicant’s employment was terminated and at all times relevant to my determination of the issues before me.

9Following the termination of his employment on November 20, 2014, the applicant, through his union, filed a grievance under the collective agreement contesting the termination and seeking reinstatement (the “termination grievance”).

10On January 2, 2015, the applicant was sent a pension election package by the IESO pension plan administrator. There apparently was some incorrect information in the forms sent to the applicant, and ultimately a revised package was sent to him on February 27, 2015. The applicant filed his completed pension election package with the pension plan administrator on April 17, 2015. In that package, the applicant indicated that he was electing to take the commuted value of his pension out of the plan.

11Prior to filing his completed pension election package, the applicant had a telephone discussion with the plan administrator on April 8, 2015, at which time he was told that if he elected to take a payout of the commuted value of his pension, then there would be a delay in his receipt of the funds. By e-mail dated April 8, 2015, the applicant wrote to the plan administrator to request that the reason and rationale for this delay be provided to him. The plan administrator replied by e-mail dated April 9, 2015, stating that the plan administrator had received confirmation from the IESO that once the applicant’s termination grievance had been resolved, it would be able to proceed with any payments owing to the applicant from the pension plan.

12On April 17, 2015, the applicant replied by e-mail taking the position that it was unlawful and discriminatory for the IESO to withhold payment of the commuted value of his pension because he had filed the termination grievance. The applicant further stated that under the Pension Benefits Act (“PBA”), the administrator had 60 days to pay out the commuted value to him, failing which he would pursue the matter with FSCO.

13The IESO responded to the applicant by letter dated April 22, 2015, stating that, while the option to withdraw the commuted value from the pension plan may be available to former employees, the applicant’s dismissal from the IESO was currently in dispute. As a result, the IESO stated that it would be inappropriate to transfer the commuted value to the applicant until the question of his employment status with the IESO was resolved.

14On April 29, 2015, the applicant replied, stating that, given that the position taken by the IESO and the plan administrator was clear in that the commuted value of his pension benefits would not be transferred until his termination grievance was settled, he would pursue the matter with FSCO.

15On May 1, 2015, the applicant contacted FSCO about this issue. He states that he was informed that it was FSCO policy not to require a pension plan administrator to pay out the commuted value of the pension if there was an outstanding grievance challenging the member’s termination of employment. On May 28, 2015, the applicant sent an e-mail to FSCO providing details of his complaint and supporting documents.

16On June 5, 2015, the applicant’s union advised the IESO that the applicant’s termination grievance was withdrawn. On June 8, 2015, the applicant sent e-mail correspondence to the IESO and the plan administrator confirming that the termination grievance had been withdrawn. As a result, the applicant expressed his expectation that the commuted value of his pension would now be paid out to him in accordance with the 60 day time period under the PBA.

17On June 10, 2015, the applicant received an e-mail from the plan administrator stating that the issues he had raised were being reviewed and the IESO would respond to him in a timely fashion.

18By letter dated June 15, 2015, the IESO wrote to the applicant to state that, while the termination grievance had been resolved, the applicant’s application to this Tribunal remained outstanding. The IESO noted that this Tribunal has the power to order reinstatement in appropriate circumstances. While stating that it did not think those circumstances applied in the applicant’s case, the IESO expressed that it was important to ensure that the status of the applicant’s employment was not in question if the commuted value of his pension was paid out. The IESO indicated that the applicant’s employment status would be resolved and the commuted value paid out, if he was prepared to undertake: that reinstatement was not an appropriate remedy in the circumstances; that he was not seeking and would not seek reinstatement as a remedy at this Tribunal or otherwise; and that he would not seek, accept or obtain employment at the IESO under any circumstances. The applicant states that he received this letter on June 17, 2015.

19On June 22, 2015, the applicant requested a draft copy of the undertaking being requested for his review. This was sent to the applicant by letter dated June 23, 2015. The applicant did not sign this undertaking.

20On August 17, 2015, FSCO wrote to the IESO to provide a copy of the applicant’s complaint, and to request the IESO’s response. By letter dated September 3, 2015, the IESO stated that it was still possible for the applicant’s employment to be reinstated, hence the delay in providing the applicant with the commuted value of his pension. FSCO followed up again with the IESO on August 4, 2016, to which the IESO replied on August 15, 2016 to advise that circumstances had not changed.

21In November 2015, the applicant filed a further application with this Tribunal against the IESO alleging discrimination in relation to the termination of his employment. The applicant is seeking reinstatement as a remedy in that application.

22While the applicant had been copied on FSCO’s first letter to the IESO dated August 17, 2015, he states that he did not receive any response from FSCO to his complaint. In the process of reviewing the instant Application in order to provide its Response to this Tribunal, FSCO noted that a complete response to the applicant’s complaint had not been provided to him.

23As a result, FSCO sent a letter to the applicant dated April 7, 2017. In this letter, FSCO reviewed the nature of the applicant’s complaint and the IESO’s response, and stated its conclusion that the IESO had not contravened the PBA or FSCO policies. In support of this position, FSCO relies upon s. 42 of the PBA, which only entitles a “former member” of a pension plan to require a payout of the commuted value of a pension. “Former member” is defined in s. 1.1(2) of the PBA to mean an individual who has either “terminated the employment that relates to the pension plan” or has “terminated membership in the pension plan”. The letter states that FSCO’s view of the PBA, as expressed in FSCO policy, is that where the legality of a termination of employment is in dispute, an individual’s employment and/or plan membership is not “terminated” within the meaning of s. 1.1(2) of the PBA.

REASONABLE PROSPECT OF SUCCESS

24The applicant takes the position that the IESO’s refusal to pay out the commuted value of his pension, and FSCO’s failure to require the IESO to do so, constitutes adverse effect or constructive discrimination against persons with disabilities. Further, the applicant submits that the rule that commuted value will not be paid out while a terminated employee’s employment status remains in dispute, which covers any legal proceeding in which reinstatement is a potential remedy, has an adverse impact on every terminated employee who files a human rights application, regardless of the Code ground, because reinstatement is a potential remedy in all such applications.

25The applicant relies upon the following material facts in support of this position: that he filed a human rights application challenging his termination as constituting discrimination because of disability in violation of the Code; that this application was only filed, and was only capable of being filed, because the applicant is a person with a disability; that persons with disabilities, including the applicant, have a more difficult time finding alternate employment and are in greater need of financial resources; that persons with disabilities have significantly lower incomes than non-disabled persons; and that the rule applied by the IESO in accordance with FSCO policy and its interpretation of the PBA denied the applicant access to financial resources at a time when he needed it most, and therefore impacted him adversely at least in part because of his disability. The applicant made submissions about the specific financial hardship that he experienced as a result of being denied access to the commuted value of his pension.

26The respondent IESO notes that there are many statutory regimes, other than the Code, in which reinstatement is a potential remedy, including the grievance arbitration process under a collective agreement, the Occupational Health and Safety Act, the Employment Standards Act and the Canada Labour Code. The IESO notes that terminated employees seeking reinstatement under any of these other regimes would similarly be denied access to the commuted value of their pension, for reasons unrelated to disability or any other Code-protected ground. While that is true, it does not necessarily negate the particular adverse impact that persons with disabilities, such as the applicant, may experience as a consequence of their social condition and the denial of access to financial resources.

27Both respondents take the position that the two-step analysis utilized by this Tribunal in Peart v. Ontario (Ministry of Community Safety and Correctional Services), 2014 HRTO 611 aff’d 2017 ONSC 782 (Div.Ct.) (“Peart”) is the appropriate legal test to apply in these circumstances. This is disputed by the applicant. In this regard, I note that, while the parties in the Peart case submitted that this two-step analysis should be used in the context of a challenge to legislation or government policy, the actual challenge being made in the Peart case was to a specific legislative provision. In contrast, the challenge in the instant case is being made to FSCO policy which is based on FSCO’s interpretation of the PBA. As a result, it is unclear to me at this stage of the proceeding whether the two-step analysis, which had been developed by the Supreme Court of Canada in the context of challenges under s. 15 of the Charter, is in fact the appropriate test to apply in the instant case, or whether the test for adverse effect or constructive discrimination as set out in the Meiorin case is more apposite: see British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees’ Union (BCGSEU), 1999 CanLII 652 (SCC), [1999] 3 S.C.R. 3 (“Meiorin”).

28The IESO submits that a determination of adverse impact would involve a comparison between the group of terminated employees able to receive the commuted value of their pension (because they are not seeking reinstatement) with the group of terminated employees who are not able to receive the commuted value (because they are seeking reinstatement). The IESO submits that the analysis would be to determine whether persons with disabilities are or are not disproportionately represented in the group not able to receive the commuted value, and the applicant has pointed to no such evidence. At this stage of the proceeding, I am not sure whether this is the correct comparison, or whether comparing the rate of representation of persons with disabilities within these two groups is the proper approach. In contrast, the applicant relies upon the fact that, within the group of terminated employees who are not able to access their commuted value, the application of the FSCO policy has a more serious and deleterious impact on persons with disabilities, who have greater need to access financial resources following termination of employment both due to their comparative difficulties in securing alternate employment and their lower wage rates when they do so.

29The IESO submits that the applicant is not entitled to rely upon evidence regarding the difficulties confronted by persons with disabilities in obtaining employment and the lower wage rates when they do, because the rule applied in denying him access to the commuted value of his pension does not serve to deprive him of any employment opportunity or cause him to be paid less because he has a disability. With respect, I am not sure that is correct. The applicant is not contending that these broader societal factors are the fault or responsibility of the respondents or are a consequence of the application of the rule at issue. Rather, the applicant is relying upon these broader societal factors as part of the contextual analysis in assessing the particular impact on persons with disabilities as a result of being denied access to financial resources at a time of need.

30The IESO submits that in order to succeed in proving adverse effect or constructive discrimination, it is not sufficient for the applicant to point to general evidence about the social condition of persons with disabilities. Rather, he must be able to point to evidence proving that his hardship was greater than a non-disabled person and that his inability to find alternate employment was related to his own disability. While that may be the case, it seems to me that that is an issue that is more properly determined on the basis of a full evidentiary record following a hearing on the merits, rather than at the preliminary stage of a summary hearing.

31FSCO submits that, even if the applicant is able to prove an adverse impact on persons with disabilities, that is not sufficient to satisfy the further requirement that the rule create or perpetuate an arbitrary disadvantage on the basis of membership in the protected group. As stated above, that may be correct if the two-step analysis used in the Peart case is appropriately applied here. But that may not be the case if the appropriate analysis proceeds under s. 11 of the Code. Under s. 11 of the Code, once an applicant establishes that a neutral rule “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 [applicant] is a member”, the legal burden shifts to the respondents to establish that the neutral rule “is reasonable and bona fide in the circumstances”, in accordance with the test established in Meiorin. It is not the purpose or function of the summary hearing process to determine whether a respondent will be able to make out a defence available under the Code that requires an assessment of evidence. That, rather, is a matter for determination at a hearing on the merits.

32In the end, having carefully considered the parties’ submissions in this matter, I am unable to find at this stage of the proceeding that the Application has no reasonable prospect of success. In my view, the issues raised in this case are more appropriately determined on the basis of a full evidentiary record following a hearing on the merits.

DELAY

33As indicated above, the respondent IESO takes the position that the Application should be dismissed for delay, on the basis that it was filed more than one year after the last alleged incident of discrimination.

34The IESO’s position is that the last alleged incident of discrimination was its letter dated April 22, 2015, in which it stated that the commuted value of the applicant’s pension would not be transferred until the question of the applicant’s employment status with the IESO is resolved. It states that this position was merely reiterated to the applicant in its letter dated June 15, 2015, which the applicant says he received on June 17, 2015, precisely one year before he filed the Application.

35In response, the applicant makes two main submissions. First, he states that the PBA affords the plan administrator with 60 days to pay out the commuted value once the member’s election is received. As the applicant’s election was filed with the plan administrator on April 17, 2015, this 60 day period did not expire until midnight on June 16, 2015. Thus, it was only on June 17, 2015 that the obligation to pay out the commuted value of the pension had not been complied with, which the applicant contends is the date on which the incident of discrimination occurred. The applicant submits that this situation is analogous to a number of this Tribunal’s decisions which have held that, where an employer gives prior notice of termination, the one year period runs not from when the notice was given but rather from when the termination actually took place: see Yardley v. McMaster University, 2016 HRTO 490; Dahir v. Corvin Building Maintenance Ltd., 2014 HRTO 1149; Boyer v. Sears Canada, 2009 HRTO 1084.

36Second, the applicant takes the position that until June 17, 2015, when he received the IESO’s letter dated June 15, 2015, the applicant had understood that it was the filing of the termination grievance that was preventing him from being paid out the commuted value of his pension. While I appreciate that the IESO’s letter dated April 22, 2015 is broader than that, I note that the e-mail sent to the applicant by the plan administrator on April 9, 2015 expressly states that the IESO had confirmed that once the termination grievance had been resolved, the payout of the commuted value could proceed. It was only after the applicant had withdrawn the termination grievance and confirmed this with the IESO that he was advised in the June 15, 2015 letter that he still would not receive payment of the commuted value of his pension due to the human rights application he had filed in July 2014. Once again, on this analysis, the act of discrimination occurred on June 17, 2015, when the applicant received the letter.

37While I understand the IESO’s position that the April 22, 2015 letter is capable of being read as also encompassing a claim for reinstatement in the context of a human rights application, and not just applying to the termination grievance, in my view this position does not account for the context in which this letter was received by the applicant. He had been told by the plan administrator in writing on April 9, 2015 that the IESO had confirmed that the commuted value of his pension would be paid out if the termination grievance was resolved. In my view, it was entirely reasonable for the applicant to interpret the April 22, 2015 letter in light of the April 9, 2015 e-mail, and understand that if he withdrew the termination grievance, he would get paid the commuted value of his pension. In my view, this understanding was especially reasonable given that the applicant’s human rights application, as it existed at that time, pre-dated the termination of his employment by some four months. One would not reasonably expect that a human rights application filed while a person was still employed, such that the person’s employment status was not and could not be in dispute, would be relied upon to assert that the applicant’s employment status was in dispute because this Tribunal has the remedial authority to order reinstatement. In order for that to be the case, the applicant would need to either amend the application filed prior to termination in order to add the allegation that the termination was discriminatory and seek reinstatement or, as he later did, file a new application making this allegation and seeking this remedy.

38As a result, in my view, the applicant had every reason to expect that, following the withdrawal of the termination grievance, the commuted value of his pension would be paid out. He was only advised that this would not occur when he received the IESO’s second letter on June 17, 2015. In my view, that represents the incident of alleged discrimination at issue in this proceeding, and is therefore within the one year period preceding when the Application was filed.

39Accordingly, the respondent IESO’s request for dismissal of the Application for delay is denied.

NEXT STEPS

40While the Application was filed on June 17, 2016, the respondents have not yet been required to file Responses pending the result of the summary hearing. As a result, within 35 calendar days of the date of this Decision, the respondents shall serve their Responses on the applicant and file them with the Tribunal. Within a further 14 calendar days, the applicant may serve and file any Reply.

41I note that in the Application, the applicant has not indicated that he agrees to mediation. If the respondents agree to mediation, they shall so indicate in their Responses. If one or both of the respondents agree to mediation, the applicant shall advise when he files his Reply whether he agrees to mediation.

42If the parties agree to mediation, a mediation date will be scheduled. If not, this matter will go into the hearing queue for scheduling of the hearing on the merits.

43Finally, I note the applicant’s request for me to remain seized of this matter. This Tribunal’s position is that an adjudicator who conducts a summary hearing is not seized in relation to any hearing on the merits. Sometimes, a hearing on the merits will be assigned to the adjudicator who conducted the summary hearing, due to that adjudicator’s familiarity with the issues, but that is an internal matter for the Tribunal to determine on the basis of adjudicator resources and availability. I see no reason to depart from that practice in the instant case. I am not seized.

ORDER

44For the foregoing reasons, I hereby make the following order:

a. The Application is not dismissed as having no reasonable prospect of success;

b. The respondent IESO’s request for dismissal of the Application for delay is denied;

c. Within 35 calendar days of the date of this Interim Decision, the respondents shall serve their Responses on the applicant and file them with the Tribunal;

d. Within a further 14 calendar days, the applicant may serve and file any Reply; and

e. If one or both of the respondents indicate that they agree to mediation in their Responses, the applicant shall advise when he files his Reply whether he agrees to mediation.