GSB# 2002-2394

UNION# 2002-0121-0012

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Grant)

Union

• and -

The Crown in Right of Ontario (Ministry of Finance)

Employer

BEFORE

Nimal V. Dissanayake

Vice-Chair

FOR THE UNION

Caroline V. (Nini) Jones Paliare Roland Rosenberg Rothenstein LLP Barristers and Solicitors

FOR THE EMPLOYER

Lucy McSweeney Senior Counsel Management Board Secretariat

HEARING

January 14 & May 27, 2005.

Decision

In a grievance dated November 25, 2002 the grievor Mr. Donald Grant has grieved that the employer had contravened the collective agreement and the Ontario Human Rights Code by discriminating against him because of his handicap.

The grievance came before the Board for mediation-arbitration under article 22.16.1 of the collective agreement. Even though this case raised complex legal issues, both parties explicitly requested that the decision be succinct as contemplated by article 22.16.2. The case was argued over two hearing days. Exhibit books were filed by both parties. I was referred to a large number of legal authorities in support of the parties’ respective positions. Nevertheless, I have attempted to comply with the parties’ joint request that the decision be succinct.

The parties filed with the Board the following Agreed Statement of Facts.

AGREED STATEMENT OF FACTS

1. Mr. Don Grant commenced employment with the Province of Ontario in the Ministry of Finance (“the Province”) on or about March 7, 1977. Mr. Grant was hired as a Property Assessor I, a trainee position that he held for approximately one year until his promotion to property Assessor II. He was a Property Assessor II for approximately two years, and since that time has been classified as a Property Assessor III. In or about 1992, Mr. Grant was selected to perform specialized property assessment and was given the title and assignment of Industrial Specialist. Mr. Grant remains an employee of the Province classified as a Property Assessor III. Throughout his employment with the Province, Mr. Grant has worked as a Property Assessor and in no other job classes.

2. Since approximately 1996, Mr. Grant was accommodated in his employment as a result of pre-existing disability.

3. On or about January 9, 1998, Mr. Grant injured his knee in a workplace accident. On or about January 14, 1998, Mr. Grant was injured in an on duty automobile accident, suffered spinal damage, and went off work due to the resultant disability. Subsequently, while absent from work, Mr. Grant was in another accident. He was totally disabled from working and received Workers’ Compensation benefits and then STSP and LTIP benefits. The LTIP benefits were instated for Mr. Grant effective December 5, 1998.

4. The Province divested itself of the Property Assessment functions, effective December 31, 1998. Approximately 2000 employees were directly affected by this divestment.

5. On or about December 15, 1998, the Province entered into an agreement with the Ontario Property Assessment Corporation (“OPAC”), now the Municipal Property Assessment Corporation (“MPAC”), addressing, inter alia, the transfer of employees to OPAC (Exhibit 2, Tab 15 and Tab 16).

6. During the fall of 1998, the Union engaged in “reasonable efforts” negotiations with the Ministry of Finance in an effort to ensure that the employees in the Property Assessment Department received jobs at OPAC. On December 8, 1998, the Union advised the Province that it would not file a “reasonable efforts” grievance under Appendix 9 of the then applicable collective agreement.

7. The Province entered into an agreement with the Union on or about December 21, 1998 addressing specific aspects of the impact of the divestment on Union employees ((Exhibit 2, Tab 18).

8. Union employees who were at work at the time of the transfer received an offer of employment by OPAC at the same salary and for the same position as they had held at the Province, effective December 31, 1998.

9. Mr. Grant was offered a position with MPAC as reflected in Exhibit 5, Tab 1.

10. Mr. Grant was not medically able to return to work by December 31, 1999 as a result of his disability. Consequently, Mr. Grant has remained an employee of the Province (Exhibit 2, Tab 19).

11. In or about late August or early September 2000, Mr. Grant contacted the Province indicating his desire to return to work. On or about September 27, 2000 Mr. Grant’s doctor wrote to the Province providing information to facilitate Mr. Grant’s return to work (Exhibit 5, Tab 3). The Province took no action to assist Mr. Grant in a return to work.

12. By letter dated November 23, 2000, Ms. Evelyn Wilson, on behalf of the Province, wrote to Mr. Grant, informing him of the Province’s position on his termination his potential surplus entitlements (Exhibit 5, Tab 4).

13. Through the spring of 2001, Mr. Grant and Ms. Wilson had a number of discussions regarding job options, bridging to 80 factor, and retraining, however, the Province’s position was that the only available option to Mr. Grant was the termination of his employment.

14. Mr. Grant continued to request that he be returned to work and accommodated (Exhibit 5, Tab 9). Mr. Grant ceased receipt of LTIP benefits on or about August 31, 2001 (Exhibit 5, Tab 6 and 7). That decision has been appealed (Exhibit 5, Tab 8).

15. The Province informed Mr. Grant, in August 2001, by memorandum dated April 23, 2001 (Exhibit 5, Tab 5), that his employment was terminated and that his only option was to resign and request surplus entitlements in accordance with the terms of the collective agreement. To date, Mr. Grant has not resigned his employment and the Province has not provided Mr. Grant with those surplus entitlements.

16. On November 25, 2002 a grievance was filed by the Union (Exhibit 1, Tab 1). The Union referred the grievance to Stage 2 of the grievance procedure on November 26, 2002 (Exhibit 1, Tab 2).

17. The Stage 2 meeting was held on September 10, 2003. The employer provided its Stage 2 response denying the grievance by letter dated September 15, 2003 (Exhibit 1, Tab 10).

18. In addition to the foregoing, the parties agree that all the evidence before the arbitrator from any stage of the hearing is properly before the arbitrator.

In this decision, I have considered the agreed facts, any relevant evidence tendered at previous phases of this proceeding, and the submissions of counsel including the extensive authorities cited.

The employer conceded that at the relevant times (i.e. prior to August 2000 when the grievor indicated his ability to return to work) the grievor was handicapped within the meaning of the OHRC and the collective agreement and that it made no attempts to accommodate the grievor. However, the employer takes the position that it did not discriminate against the grievor on the basis of that handicap.

The union, on the contrary, takes the position that by entering into the terms of its agreement with OPAC and the MOU with the union, the employer did discriminate against the grievor because of his handicap. The parties agreed that my determination ought to be restricted to whether or not such discrimination occurred contrary to the OHRC and the agreement.

In summary the dispute is as follows. Through its agreement with OPAC and the MOU with the union, the employer obtained the commitment of the new employer OPAC, that upon the divestment of its Property Assessment Division, OPAC would employ all of the affected employees in the same positions they held with the OPS and at the same wage rates. However, for those employees like the grievor, who were off sick on LTIP at the time of the divestment, a special deal was struck in the OPAC agreement and the MOU with the union. They received job offers, which expired at the end of one year from the date of the divestment. This essentially meant that if an employ recovered from the disability within the one year window, OPAC would give him a position. Those who do not recover within the one year window were to remain employees of the crown and no longer entitled to a position with OPAC.

The divestment became effective December 31, 1998. Thus, for the grievor the one year window for accepting a job offer with OPAC closed on December 31, 1999. The grievor could not accept his job offer within the one year because his recovery and readiness to return to work did not take place till September, 2000. By then his position had been divested, along with all jobs that previously existed in the Property Assessment Division. Under the terms of the OPAC agreement and the MOU, he remained an employee of the crown. He continued to receive LTIP benefits as long as he remained disabled. When he sought to return to work, with certain restrictions, the employer advised that his position no longer existed in the OPS. The employer applied the collective agreement to the grievor. His position was declared surplus under article 42.10. He was advised that he had no bumping or redeployment rights because no positions in the Property Assessor classification (the only classification the grievor had occupied) existed within the OPS. He was advised that his only option was to

resign and request six (6) months’ pay in lieu of notice under Article 20.2, plus termination pay under Article 53, and the greater of the separation allowance under Article 20.3 of the Collective Agreement or enhanced severance pay under paragraph 4 of Appendix 9.

In Andrews v. Law Society of British Columbia, [1989] 1. S.C.R. 143 (S.C.C.) McIntyre J At pp. 173-75 defined discrimination as follows:

What does discrimination mean? The question has arisen most commonly in a consideration of the Human Rights Acts and the general concept of discrimination under those enactments has been fairly well settled. There is little difficulty, drawing upon the cases in this Court, in isolating an acceptable definition . . . . I would say then that discrimination may be described as a distinction, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations, or disadvantages on such individual or group not imposed upon others, or which withholds or limits access to opportunities, benefits, and advantages available to other members of society. Distinctions based on personal characteristics attributed to an individual solely on the basis of association with a group will rarely escape the charge of discrimination, while those based on an individual’s merits and capacities will rarely be so classed.

In Law v. Canada (Minister of Employment and Immigration, 1999 CanLII 675 (SCC), [1999] 1 S.C.R. 497 (S.C.C.), in identifying discrimination in relation to S. 15(1) of the Canadian Charter of Rights and Freedoms, the court (further analysed the required inquiry, including a three fold test.

A critical step in the analysis is the identification of the appropriate comparator group, since identification of discrimination always involves a process of comparison. While the parties agreed upon the importance of identifying the proper comparator group, they disagreed on what that group should be.

Union counsel proposed two groups as appropriate comparators. First, those employees of the Property Assessment Division who were not disabled and were at work on the effective divestment date of December 31, 1998. Under the agreement between the employer and OPAC they were able to accept the job offers from OPAC and secured positions with OPAC. The second proposed comparator is the group of employees, who were not at work due to disability on the date of divestment, but who recovered within the negotiated one year window, and thus were able to accept the job offer and secure employment with OPAC. The union submits that disabled employees such as the grievor, who did not recover by December 31, 1999 were treated differently as compared to either of those two groups and that the basis of that differential treatment was their disability. Citing inter alia, Battlefords and District Co-operative Ltd. v. Gibbs 1996 CanLII 187 (SCC), [1996] 3 S.C.R. 566 (S.C.C.), union counsel argued that discrimination between two groups of disabled employees constitutes a violation of the Human Rights Code.

Counsel disagreed with the employer’s fundamental position that the grievor’s job as a Property Assessor no longer existed at the time he sought to return to work in September 2000. Counsel submitted that the Property Assessor jobs continued to exist with OPAC and the grievor’s colleagues who were not disabled, or disabled but recovered by December 31, 1999, were occupying those positions.

In the alternative, the union submitted that the employer discriminated against the grievor when he was ready to return to work following a period of LTIP, by not treating him under article 42.7 and allowing him to return on a rehabilitation basis, and by not providing the grievor re-employment training opportunity under article 20.12.

The employer acknowledged that under normal circumstances, when the grievor was ready to return to work, it had the obligation to provide him assistance and accommodation to do his job to the point of undue hardship. The obligation is to provide assistance to do the job. Counsel argued that here the grievor was expecting the employer to create a job for him where none existed due to the divestment of the whole Property Assessment Division. The employer’s fundamental position was that the grievor was not entitled to a job because of his disability where no jobs existed in the OPS following the divestment. If he had a job to return to, he would certainly have been entitled to be accommodated to enable him to perform it.

The employer disagreed with the comparators suggested by the union. The employer urged the Board to accept as appropriate comparators either (1) employees who return to work after 2 years of LTIP benefits or (2) employees whose jobs are eliminated. The former are treated under article 42.10 and the latter under article 20. The employer points out that the grievor was treated in the same manner as those two types of employees and submits that the grievor, because of his disability, is not entitled to better treatment than those employees who find their jobs to be eliminated upon return to work.

Conclusion

The parties did not disagree in any material way as to the principles established in the many authorities they referred me to. The dispute was as to their application in the circumstances of this case, particularly in deciding on appropriate comparators. I have carefully considered the case law, particularly the judgement of the Supreme Court of Canada in Law v. Canada (Minister of Employment and Immigration) (supra) and concluded that the appropriate comparator is that group of employees whose jobs had been eliminated while they were away on disability benefits. Union counsel distinguished the case law relied upon by the employer on the basis that in this case the grievor’s job had not disappeared. She pointed out that the grievor’s position of property Assessor continued to exist within the new employer OPAC. While that is true, the undeniable reality is that as of December 31, 1998, the respondent employer, the crown, had divested itself of all positions which had previously existed within its Property Assessment Division. More particularly, it no longer employed Property Assessors within the Ontario Public Service. The grievor was therefore treated in the same way as other employees who find their jobs eliminated, i.e. under article 42.10 and article 20. Unfortunately, because of his personal employment background within the OPS, he did not qualify for displacement or redeployment rights.

The union alleged that the employer negotiated guaranteed job offers on behalf of able-bodied employees, while the grievor only received a job offer which was conditional upon his ability to accept it within one year. However, it is clear that the differential treatment there was more beneficial to the grievor. Had he received the same offer as other employees, the door would have been shut for him immediately because he would have been expected to start with OPAC on January 1, 1999 and he was not in a position to do so. He in fact received a grace period of one year to accept the offer.

Union counsel conceded that the union was not taking the position that the employer should have negotiated an open-ended job offer, which the grievor could accept whenever he recovered. She recognized that the imposition of a time-limit by itself was not discriminatory. However, she argued that a one year limit was discriminatory and suggested that a two year limit would have been reasonable. I cannot agree. No matter what the time-limit is, some employees are going to meet it and others not. Unfortunately the grievor missed it by some 8 months. The one year time limit was one arrived at by agreement of the employer, the union and OPAC. As the Board determined in its prior decision, the union initially demanded a two year window, but ultimately agreed to one year. In the circumstances, I cannot conclude reasonably that by agreeing to the one year time limit the employer discriminated against the grievor on the basis of his disability.

As for the union’s alternate position that the grievor should properly have been accorded rehabilitative employment under article 42.7 and/or training for a new job under article 20.12, if the union is of the view that the grievor upon the loss of his own position was entitled to those rights it could have grieved to that effect. I cannot see how, if those rights were wrongfully denied, that could constitute a discrimination on the basis of disability.

For all of the foregoing reasons, I find that the employer did not engage in discrimination on the basis of disability and therefore did not contravene the Human Rights Code or the collective agreement. The grievance is therefore dismissed.

Dated this 23rd day of June 2005 at Toronto, Ontario.