Court File and Parties
CITATION: Carter v. Human Rights Tribunal of Ontario, 2019 ONSC 142
DIVISIONAL COURT FILE NO.: 530/17
DATE: 20190121
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Swinton, Sachs and McCarthy JJ.
BETWEEN:
GEORGE CARTER Applicant
– and –
HUMAN RIGHTS TRIBUNAL OF ONTARIO and FCA CANADA INC. Respondents
Jennifer Zdriluk and Wade Poziomka, for the Applicant
Brian Blumenthal, for the Respondent Human Rights Tribunal Adam Guy and Maxie Axelrod, for the Respondent FCA Canada Inc.
HEARD at Toronto: December 10, 2018
Swinton J.:
Overview
[1] The applicant, George Carter, seeks judicial review of a decision of the Human Rights Tribunal of Ontario (the “Tribunal”) dated February 8, 2017 (reported at 2017 HRTO 168). The Tribunal found that the respondent FCA Canada Inc. (the “employer”) had discriminated against the applicant on the basis of disability in the period between August 2013 and May 2014 by not considering whether he was capable of doing temporary and non-standard jobs. The Tribunal then ordered that he receive compensation of $5,000 for injury to dignity, feelings and self-respect for discrimination, and that the employer undertake a review of its return-to-work procedures.
[2] For the reasons that follow, I would dismiss the application for judicial review, as the decision of the Tribunal is reasonable.
Background
[3] The applicant has worked for the employer, a car manufacturer, for many years. In 1997 and 2002, he experienced work-related injuries to his right arm that resulted in permanent medical restrictions on the work he could perform. In September 2011, he suffered a heart attack that prevented him from working at all. He attempted to return to work in 2012, but he suffered another cardiac event, and he was unable to work again until 2013.
[4] When the applicant sought to return to work in May 2013, the employer refused to consider him for jobs until he provided medical information with respect to his capacity to work and necessary restrictions because of his medical conditions. That information was provided by August 2013.
[5] The applicant works in a unionized workplace, where jobs are distributed on the basis of seniority and ability to do the job. Pursuant to the collective agreement in operation, an employee with a medical restriction may bump a more junior employee if he or she is capable of doing the job.
[6] The applicant was unable to return to his prior position in the paint department, because he had been bumped out of it by an employee with greater seniority. In accordance with the return-to-work program, the employer sought to find other permanent jobs that the applicant could do, given his medical restrictions and his seniority. In the following months, the employer was unable to find any permanent job for the applicant, in part because of his medical restrictions and in part because of his seniority, which was relatively short.
[7] The applicant’s cardio-related restrictions were lifted sometime around the end of April 2014. On May 6, 2014, the employer informed the applicant that he would be considered for temporary and non-standard jobs, and about that time he was given a temporary job. He continued to work at temporary jobs until November 2014, when a permanent job that he had the seniority to secure was found.
The Tribunal Proceeding
[8] The applicant brought an application before the Tribunal alleging that he had been discriminated against on the basis of disability from May 2013 through May 2014. In particular, he argued that the employer preferentially accommodated people with work-related injuries because of a Workplace Safety and Insurance Board (“WSIB”) program known as “NEER.” He also argued that the employer failed to meet its duty to accommodate his disability.
[9] This application was the second one that the applicant brought alleging discrimination on the basis of disability. In the first proceeding, both the employer and the applicant’s union, Unifor, were parties. On June 9, 2014, the adjudicator (who is also the adjudicator in the present case) had issued a decision in which he found certain practices of the employer’s return-to-work system in 2008 and 2010 to be discriminatory (Carter v. Chrysler Canada Inc., 2014 HRTO 845). In the course of that decision, the Tribunal rejected the applicant’s argument that he was discriminated against on the basis of disability because the seniority system prevented him from seeking jobs by bumping those with greater seniority. That decision was not the subject of judicial review.
[10] The parties agreed that the same adjudicator should hear the second application, and that he could rely on evidence from the first proceeding in the second proceeding. In the second decision, the Tribunal found that the NEER program was not discriminatory. However, the employer failed to meet its duty to accommodate, as required by s. 17 of the Human Rights Code, R.S.O. 1990, c. H.19 (the “Code”), because the employer had searched only for permanent jobs, and it had not considered whether the applicant was capable of doing temporary jobs between August 2013 and May 2014.
[11] As a remedy, the Tribunal ordered that the applicant receive $5,000 in general damages, and the employer must review its return-to-work procedures.
[12] The applicant sought reconsideration of that decision, which was denied on July 5, 2017.
The Standard of Review
[13] It is well established by past jurisprudence that the standard of review with respect to the Tribunal’s application of the Code to the facts of a particular case is reasonableness (see, for example, Shaw v. Phipps, 2012 ONCA 155 at para. 10).
The Issues
[14] The applicant argued that the Tribunal’s decision is unreasonable for three reasons:
The Tribunal gave primacy to the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sched. A over the Code.
The Tribunal unreasonably gave primacy to the seniority provisions in the collective agreement, as seniority should not be considered in determining undue hardship under s. 17 of the Code.
The remedy is unreasonable, because the Tribunal made no damage award for lost wages despite the employer’s breach of its procedural duty to accommodate.
The Treatment of the NEER program
[15] The Tribunal stated that the applicant’s primary concern in the application was the differential treatment accorded employees with work-related injuries and those with non-work-related injuries – that is, because of the NEER program.
[16] The employer is part of a WSIB experience rating system (NEER) that creates an incentive for employers to provide suitable work at full pay to workers who have suffered a work-related injury. The incentive works within a “cost window” that is open for approximately four years after a worker suffers an injury. The applicant argued before the Tribunal that the incentives in the NEER program led the employer to preferentially accommodate people with work-related medical restrictions over other disabled workers.
[17] The employer presented evidence that standard jobs are generally permanent in nature, while non-standard jobs are mostly temporary. It conceded that workers who have an “active claim” – that is, one that is open during the WSIB window – are much more likely to be offered non-permanent work than workers who have an inactive claim or those who have non-work-related injuries. The evidence, summarized in the Tribunal’s decision, was that on any given day, there were between 50 and 100 employees seeking a permanent standard job, and not enough jobs to go around.
[18] The Tribunal held that the preferential treatment of workers with an active claim was not discrimination on the basis of disability under the Code. At para. 96, the Tribunal stated:
While the result of the policy is that some disabled workers are treated more advantageously than others, the distinction does not arise from disability but rather from the operation of a statutory scheme. While the applicant has established that the respondent treat injured workers with an active WSIB claim differently than other employees with medical restrictions, he has not established that this is discriminatory under the Code.
[19] That was a reasonable conclusion, consistent with existing legal principles (see, for example, McGill University Health Centre (Montreal General Hospital) v. Syndicat des employés de l’Hôpital général de Montréal, 2007 SCC 4 at para. 50).
The Duty to Accommodate
[20] Pursuant to s. 17 of the Code, an employer has an obligation to accommodate an employee’s disability up to the point of undue hardship. Section 17 reads in part:
17(1) A right of a person under this Act is not infringed for the reason only that the person is incapable of performing or fulfilling the essential duties or requirements attending the exercise of the right because of disability.
(2) No tribunal or court shall find a person incapable unless it is satisfied that the needs of the person 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.
[21] The applicant argues that the only proper considerations with respect to undue hardship are those set out in s. 17(2): costs, outside sources of funding, if any, and health and safety requirements, if any. Therefore, he submits, the Tribunal erred in considering seniority and the NEER program requirements.
[22] However, the employer did not claim that it would suffer undue hardship if it had to accommodate the applicant by returning him to work (see para. 99 of the Tribunal reasons). Rather, the issue before the Tribunal was whether the employer met its procedural duty to accommodate, when looking for suitable work for the applicant.
[23] The Tribunal found that there was no failure to accommodate the applicant from May 6, 2013 to August 9, 2013, when the employer was awaiting clarification of the applicant’s medical restrictions. This was a reasonable conclusion by the Tribunal.
[24] The Tribunal then found that the employer failed to meet its duty to accommodate between August 2013 and early May 2014, because the employer looked only for permanent jobs. As part of its analysis, the Tribunal observed (at para. 105):
[The applicant] had medical restrictions relating to his arm condition and to his cardiac condition. Combined those restrictions ruled out most of the standard production jobs. In addition, relative to the workforce as a whole in the plant, the applicant had low seniority.
[25] The employer failed to consider the applicant for temporary jobs that were available during this period, even if he was physically able to do them and had the necessary seniority. The Tribunal held this to be discriminatory, because the employer did not fulfil its duty to accommodate.
[26] The applicant argues that the Tribunal unreasonably accepted that workers with active WSIB claims could be given preference for temporary and non-standard jobs, and seniority was treated as a proper consideration by the employer in carrying out its duty to accommodate.
[27] In my view, the Tribunal reasonably concluded that there was nothing improper in the preferential treatment for the active WSIB claimants. Sadly, the reality was that there were more disabled individuals who needed accommodation in this workplace than there were positions for them.
[28] With respect to the treatment of seniority, it is important to recall the earlier decision of the Tribunal, in 2014. That decision dealt with the potential conflict between the seniority provisions of the collective agreement and the duty to accommodate under the Code. At para. 88 of that decision, the Tribunal discussed the duty to accommodate where an employee can no longer perform his or her duties because of a disability. If the employee’s own job cannot be modified, the employer is required to look for other jobs that the disabled employee can perform. However, the Tribunal stated, “the duty to accommodate does not include an obligation to displace another employee out of his or her job…” While the operative collective agreement conferred the right of a disabled employee to displace a more junior employee, the Tribunal rejected the argument that a disabled employee could displace a more senior employee. The Tribunal noted that the duty to accommodate does not give employees in a non-unionized workplace the right to displace another employee, and unionized employees have no greater rights to do so, absent collective agreement language.
[29] When the Tribunal considered the employer’s duty to accommodate in the present proceeding, it did so in light of its earlier finding that the seniority system was not discriminatory. The earlier decision was never the subject of judicial review. Thus, it was reasonable for the Tribunal to conclude that seniority rights were a relevant consideration when determining whether there were positions available to accommodate the applicant.
[30] Moreover, it is not clear that the applicant took issue with the consideration of seniority in relation to the duty to accommodate in the second proceeding. The application to the Human Rights Tribunal appears to focus on the NEER program, and the Tribunal identified the preferential treatment accorded to those with work-related injuries as the primary issue in the second proceeding.
[31] The applicant’s counsel seeks a broad statement from this Court that seniority rights are an irrelevant consideration in the determination of undue hardship under s. 17 of the Code. It would not be appropriate for the Court to make such a statement. The cases relied upon by the applicant respecting seniority rights and the duty to accommodate are ones where the disabled employees were treated disadvantageously with respect to their personal seniority rights, and do not support the broad relief sought by counsel (for example, Ontario Nurses’ Association v. Orillia Soldiers Memorial Hospital (1999), 42 O.R. (3d) 692, 1999 3687 (ONCA); London Transit Commission v. Amalgamated Transit Union, Local 741, [2011] O.L.A.A. No. 576 (Lynk) at para. 14).
[32] The question before the Court is whether the Tribunal reasonably concluded that on the facts of this case, the employer failed to meet its procedural duty to accommodate because it did not look at temporary and non-standard jobs. That conclusion was reasonable. So, too, was the conclusion that the employer otherwise met its duty to accommodate in the search it made for permanent jobs, given the facts and the law.
The Remedy
[33] In his factum, the applicant raised three issues with respect to remedy – the failure to award damages for loss of income, the low quantum of the amount awarded, and the failure to make a future compliance order requiring the employer to retain an independent specialist to assist in drafting appropriate medical placement and return-to-work policies. At the hearing of this application, the applicant did not pursue the issue of the future compliance order.
[34] The applicant argues that the Tribunal unreasonably awarded him only $5,000 in general damages. Given that the Tribunal found the employer violated its duty to accommodate, the applicant’s counsel argues that the Tribunal appears to reverse the onus of proof, requiring the applicant to prove certain jobs were available for him.
[35] The Tribunal acknowledged that normally, an applicant would be entitled to monetary compensation equivalent to the earnings he or she would have received during the period in which he or she would have been accommodated in another position. However, the Tribunal explained that there was no sound basis to quantify compensation for lost income. There was a lack of data on job availability and the types of jobs the applicant would have been able to access, given his medical restrictions and seniority, and there would be no way to clarify this matter with additional evidence.
[36] Instead, the Tribunal awarded $5,000 for the injury to dignity, feelings and self-respect. The Tribunal explained its reasoning at para. 123:
The amount of such damages is difficult to quantify. The applicant was out of the workplace for an extended period of time. He might have been off for this same period even if he had been considered for temporary or non-standard jobs. The compensation is therefore based on the fact that because of his disability, he was not considered for temporary or non-standard jobs.
[37] The Tribunal has a broad remedial jurisdiction pursuant to s. 45.2 of the Code. In fashioning the remedy it did, the Tribunal did not “reverse the onus”. Rather, it concluded that it could not quantify a loss of income claim, given the lack of evidence and given the applicant’s medical restrictions and seniority. Therefore, the Tribunal fashioned a remedy that it considered just in the overall circumstances of this case.
[38] The Tribunal explained its reasoning clearly. Deference is owed to its decision as to the appropriate remedy and the appropriate quantum of damages. I see no basis for judicial intervention with respect to remedy, as the remedy was reasonable.
Conclusion
[39] For these reasons, the application for judicial review is dismissed. The Tribunal does not seek costs.
[40] The employer sought costs of $15,000. In my view, this is excessive for an application of this degree of complexity. Costs to the respondent employer are fixed at $5,000.00 all inclusive.
Swinton J.
I agree _______________________________
Sachs J.
I agree _______________________________
McCarthy J.
Released: January 21, 2019
CITATION: Carter v. Human Rights Tribunal of Ontario, 2019 ONSC 142
DIVISIONAL COURT FILE NO.: 530/17
DATE: 20190121
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Swinton, Sachs and McCarthy JJ.
BETWEEN:
GEORGE CARTER Applicant
– and –
HUMAN RIGHTS TRIBUNAL OF ONTARIO and FCA CANADA INC. Respondents
REASONS FOR JUDGMENT
Swinton J.
Released: January 21, 2019