COURT FILE NO.: 150/04
DATE: 20050127
ONTARIO
SUPERIOR COURT OF JUSTICE
(DIVISIONAL COURT)
RE: Amalgamated Transit Union, Local 113 v. Toronto Transit Commission and Ian Springate
BEFORE: Carnwath, Swinton and Hennessy JJ.
COUNSEL: Ian J. Fellows and David A. Wright for the Applicant
Douglas K. Gray for the Respondent
HEARD at Toronto: January 26, 2005
ENDORSEMENT
[1] The question whether the grievor suffered from a disability is a question of mixed fact and law. Applying the four factors of the pragmatic and functional approach, we conclude that the standard of review of that aspect of the arbitrator’s decision is reasonableness (Alberta Union of Provincial Employees v. Lethbridge Community College (2004), 2004 SCC 28, 319 N.R. 201 (S.C.C.) at para 14).
[2] Given that s. 48(1) of the Labour Relations Act, 1995 provides that an arbitration decision is to be “final and binding”, some deference is to be paid to the decisions of arbitrators. Moreover, the Supreme Court of Canada has recognized that arbitrators have some expertise in applying the Human Rights Code (Parry Sound (District) School Services Administration Board v. O.P.S.E.U. Local 324, 2003 SCC 42, [2003] 2 S.C.R. 157 at para. 54). The purpose of arbitration under the Labour Relations Act is to provide for the expeditious resolution of workplace disputes.
[3] Finally, while the arbitrator was required to apply the definition of disability in the Ontario Human Rights Code, he had to assess the evidence before him to determine whether the grievor was disabled. The question which he had to determine was one of mixed fact and law, which should be accorded deference (AUPE, supra at para. 22).
[4] The arbitrator applied the definition of disability in Québec (Commission des droits de la personne et des droits de la jeunesse) v. Montreal (City) (2000), 2000 SCC 27, 185 D.L.R. (4th) 385 (S.C.C.) at para. 82 to the facts before him, and he concluded that the grievor did not suffer from a disability. In this case, the only medical evidence called at the hearing was from the grievor’s family physician. Apart from some evidence about the condition of the grievor’s hand, the doctor gave no evidence about gastroenteritis, upper respiratory infections, sinusitis, or any other medical reason for the grievor’s absences from work. The grievor himself did not testify, and thus, he provided no insight into the effect that any of these conditions had on his participation in society or in any other way. The arbitrator carefully considered the evidence and came to the conclusion that the grievor was not disabled. That decision was reasonable.
[5] We are satisfied that the WSIB absences did not form part of the incident that led to the grievor’s termination, and the arbitrator correctly placed no reliance on them. The memo of termination states,
After a further brief conversation I advised you that since your interview with the General Superintendent dated June 25, 2001 you have been afforded ample opportunity to improve your attendance record. I then advised you that you have failed to demonstrate the required immediate, significant and ongoing improvement in your attendance record. You were further advised that based on this failure to improve, your employment with the Commission is terminated effective immediately.
The grievor was not absent because of a workplace injury at any time after June 25, 2001. Therefore, it appears that the WSIB-related absences did not form part of the reason for dismissal. The fact that they were noted in his record as part of his history was not improper.
[6] With respect to the determination whether there was just cause to dismiss the grievor for innocent absenteeism, the arbitrator considered the grievor’s record and the parties’ At Work Program, and he drew an inference that the attendance was unlikely to improve in the future. His decision was reasonable.
[7] Therefore, the application for judicial review is dismissed. Costs are awarded to the respondent, fixed in the amount of $4,000.00.
Released: January 27, 2005
Carnwath J.
Swinton J.
Hennessy J.