Ottawa, Ontario, February 26, 2007
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
and
and TEAMSTERS LOCAL UNION NO. 31
REASONS FOR JUDGMENT AND JUDGMENT
[1] Mr. Lowe was a truck driver who suffered from Muscular Dystrophy (MD). He had driven for one customer for some period of time but lost the position due to seniority and changes in how work was assigned. His complaint that the employer and union had failed to accommodate his disability was dismissed by the Canadian Human Rights Commission (CHRC) because:
(a) the evidence did not support his complaint of failure to accommodate;
(b) Mr. Lowe had not provided his employer with medical certification regarding his disability;
(c) Mr. Lowe had not provided his union with medical certification regarding his disability in support of his grievance; and
(d) the union had assisted Mr. Lowe in securing alternate employment.
[2] The Applicant, in this judicial review, raised the issue of the error in dismissing the complaint, particularly with respect to the absence of medical certificates, the issue of the fairness and thoroughness of the investigation and the fairness of the Commissioner’s decision.
II. BACKGROUND
[3] Lowe was an employee of Landmark Transport Inc. (Landmark). Teamsters Union Local No. 31 (Union) was the bargaining agent for the driver employed at Landmark. Lowe owned and operated his own tractor and was under exclusive contract to work for Landmark. He was paid only for the work he actually did which was assigned daily.
[4] Landmark is a hired cartage company operating in Western Canada and the United States. It provides support services to other transport companies who require additional haulers and other companies who require cargo transported from time to time. The majority of the work is on an as‑needed basis.
[5] However, when Landmark has regular consistent work from a particular client, it posts the assignment for its owner-operators to bid on. A seniority list is created from the owner-operators that respond to the bid. When assignments come up, they are assigned on the basis of seniority; the most senior driver is contacted first and so on. Once the list is created, other drivers cannot come in and bump less senior drivers.
[6] Kleysen’s Transport (Kleysen), a trucking company, is a client of Landmark for whom it provides additional trucks on an as-needed basis. Kleysen hauls beer for Molson’s. Kleysen had regular work which engaged the seniority process described.
[7] The Union and Landmark have a Collective Agreement which contains a seniority clause governing, inter alia, new jobs and vacancies requiring posting for such positions.
[8] As indicated earlier, the Applicant has MD. In 2002, having returned to work after breaking his arm, he began assisting with the Kleysen work which he found was conducive to his medical condition. As he had greater seniority, he took over the # 1 dispatch position and did the work consistently and exclusively.
[9] In July/August 2003, the Applicant voluntarily took his tractor out of service to make modifications. Another driver moved into the first position with Kleysen. Upon the Applicant’s resumption of work, he demanded a return to his first position. This was refused on the grounds that the incumbent was doing a good job and had greater seniority.
[10] As the Kleysen work was so regular, the Union required Landmark to post the positions. The Applicant came in third on seniority for the position he had held.
[11] The Applicant filed a complaint against Landmark and the Union. He claimed that the # 1 position was perfect for his health because it kept him physically active at a level conducive to his medical condition. The employer claims that the work as a # 1 or # 3 is the same and the only real difference is financial.
[12] The Union refused to pursue the Applicant’s complaint.
[13] Finally, as a result of the Applicant’s behaviour, Kleysen’s customers complained about him. He was banned from all Kleysen work. The Union instructed Lowe to stop harassing the person who held the # 1 position. As matters evolved, the Kleysen work no longer exists as Kleysen is no longer a customer of Landmark (although this is not relevant to the Applicant’s rights).
[14] For the reasons stated earlier, the Commission dismissed the Applicant’s complaint. In effect, the Commission adopted the Investigator’s Report and if there are any errors, they stem from the Report and the way in which the investigation was conducted.
[15] Even at the late stage of the judicial review hearing, the Court permitted the Applicant to file affidavit evidence, the purport of which is to establish that the investigator had a closed mind and exhibited bias or at least a predisposition against the Applicant. It is alleged that the investigator was not fair, balanced or neutral.
III. ANALYSIS
A. Standard of Review
[16] As to the standard of review, I follow the conclusions of the Court of Appeal in Tahmourpour v. Canada (Solicitor General), 2005 FCA 113 and the thorough analysis of Justice Mactavish in Loyer v. Air Canada, 2006 FC 1172 that the standard of review of this type of decision by the Commission is “reasonableness”.
B. Medical Certificates
[17] A principal component of the Applicant’s case is the alleged failure to produce medical certificates. The Applicant says that he did and they were ignored because the investigator held that they were received after the complaint had been filed.
[18] The Applicant claims that both the employer and the Union had a duty to investigate how the Applicant could be accommodated – that they had a duty to “dialogue” with the Applicant and that it was an error of law to demand medical certificates.
[19] There was no suggestion that the medical evidence was not examined because it was received after the complaint was filed. The Investigator’s Report is clear that it was not the absence of any medical evidence, so much as it was the Applicant’s failure to provide the employer with
“medical certification outlining his work limitations or supporting his request to remain in the number one dispatch position”.
[20] It must be remembered that the onus is on an applicant/claimant to establish a prima facie case of discrimination. (Ontario (Human Rights Commission) v. Simpson Sears Ltd., [1985] 2 S.C.R. 536 at 558)
[21] The allegation of failure to accommodate must also be considered against the background of the information available to either or both the employer and the Union.
[22] The Complaint was filed on November 23, 2003 and amended on February 15, 2004. On February 19, 2004, there was a “To Whom It May Concern” note from the Applicant’s doctor saying:
“... Some accommodation in the work place would be appropriate. We are in the process of having him more formally tested to define those limitations ...”
[23] This was followed by a doctor’s letter of March 25, 2004, the salient parts of which are:
“...In the schedule and type of work he worked out he was able to gain strength and function to a higher level than previously achieved.
In the summer of 2003, this excellent schedule was unfortunately changed. He was returned to a more common and unpredictable schedule involving jobs that required muscular effort that he is unable to do. He then went on to suffer a significant depression, due in part, undoubtedly, to the strain and realization of his frailty. He has recovered from his depression to a considerable extent but he is left with the obstacle of being asked to do work to which he is not suited.
I strongly urge his employer, if possible, to reassign him to the very successful schedule he previously enjoyed, for the benefit of his health and his ability to return to productive work.
I also encourage the formal testing and documentation of his muscular weakness. This may be done by a private Occupational Therapist clinic. Unfortunately, this is not covered under out [sic] health care program and funding is private. I would encourage Mr. Lowe’s employer to consider funding this independent evaluation in the interests of all concerned.
[24] Both the Union and the employer had been asking for information on precisely what the Applicant could or could not do.
[25] Finally, on August 24, 2004, the Applicant had the report of an occupational therapist which was submitted during the investigation. The report does not address the concerns raised by the employer and the Union. Again, the salient portions are:
At his present level of physical function, Mr. Lowe meets the requirements of his occupation as a Truck Driver for sitting, standing, walking, body dexterity, climbing, reaching, handling, and strength.
Of note, based on testing, it is imperative that Mr. Lowe be restricted to working within his physical capacity, as it appears that he would push himself to complete a task or he would find a different way of doing the task, such as using improper body mechanics to perform heavy lifting. This approach of minimizing limitations can be considered to pose a risk of injury.
It [sic] terms of answering the referral questions, with respect to his present physical function, Mr. Lowe would be able to work full-time employment in limited, light, and, in part, the medium strength occupations defined by the NOC, within his physical capacity and within the restrictions detailed above.
Recommendations/accommodations to improve Mr. Lowe’s employability or to assist him at work would include:
1. Mounted bars on truck. It is advised that Mr. Lowe ensure that he has securely mounted handles on his truck in order to assist with gripping when climbing onto and off of his truck.
2. Working within physical capacity. Mr. Lowe should work within his physical capacity (as detailed above) in order to avoid injury and to enable him to work full time.
[26] It is not accurate to depict the employer as refusing to accommodate or to enter into an inquiry (or dialogue as the Applicant put it). The employer, knowing the Applicant had MD, requested medical certificates for the very purpose of determining what accommodation had to and could be made. The employer was in the difficult position of dealing both with a duty to accommodate one employee and at the same time not, without justification, “bump” another employee from his position secured under the Collective Agreement.
[27] The Union was in a similar position as it had requested such evidence on several occasions. The Applicant did not bring forward any evidence that the # 1 position was the only position which could accommodate his disability. Even the occupational therapist’s report does not address this issue.
[28] The duty of an employer is well set out in Brampton (City) and A.T.U., Loc. 1573 (1998), 75 L.A.C. (4th) 163 at 171:
In general, an employer is required to make a reasonable response to a reasonable request for accommodation. The individual, or his Union, must make the first moves. Before an employer is required to respond, the individual must prove that he has a disability; that he cannot perform his old job (in whole or in part) by reason of the disability; and what abilities he retains to perform other duties the employer may reasonably have available. In most cases the individual will have to produce medical evidence sufficient to allow the employer to match abilities of the individual with the demands of a job. It is only when the employer is in receipt of the necessary information that the duty to respond reasonably, within a reasonable time, arises.
[29] It was not sufficient for the Applicant to merely insist on returning to the # 1 position without showing a basis for concluding that there was only one way to accommodate his disability and that it was the return to the former position. The Commission’s decision as regards the employer was reasonable.
[30] The duty to accommodate imposed on a union is slightly different from that imposed on an employer, in part because of the representative nature of a union. That duty in the context of a union was described in Central Okanagan School District No. 23 v. Renaud, [1992] 2 S.C.R. 970 at para. 38:
The duty to accommodate should not substitute discrimination against other employees for the discrimination suffered by the complainant. Any significant interference with the rights of others will ordinarily justify the union in refusing to consent to a measure which would have this effect. Although the test of undue hardship applies to a union, it will often be met by a showing of prejudice to other employees if proposed accommodating measures are adopted. As I stated previously, this test is grounded on the reasonableness of the measures to remove discrimination which are taken or proposed.
[31] The Investigator’s Report and the Union’s position was not, as argued by the Applicant, that seniority rights trump the duty to accommodate. The Union simply insisted on some objective medical-based evidence that the Applicant required the # 1 position.
[32] Therefore, the Union’s position supporting seniority, in the absence of the Applicant’s evidence that the # 1 position was the only job he could perform, was not a breach of the Union’s legal obligations toward the Applicant.
[33] The investigator’s conclusion that “the complainant did not provide the respondent with medical certification outlining his work limitations and/or supporting his request to occupy the number one dispatch position” was a finding which was open to the investigator to make.
C. Thoroughness/Fairness of Investigation
[34] The Applicant’s principal contention is that the investigation was not thorough or fair because the investigator did not investigate the effects of MD generally or in respect of Mr. Lowe specifically.
[35] The principle in issue has been set forth in Slattery v. Canada (Human Rights Commission), [1994] 2 F.C. 574 (F.C.T.D.) at para. 69:
The fact that the investigator did not interview each and every witness that the applicant would have liked her to and the fact that the conclusion reached by the investigator did not address each and every alleged incident of discrimination are not in and of themselves fatal as well. This is particularly the case where the applicant has the opportunity to fill in gaps left by the investigator in subsequent submissions of her own. In the absence of guiding regulations, the investigator, much like the CHRC, must be master of his own procedure, and judicial review of an allegedly deficient investigation should only be warranted where the investigation is clearly deficient. In the case at bar I find that the investigator did not fail to address any fundamental aspect of the applicant’s complaint, as it was worded, nor were any other, more minor but relevant points inadequately dealt with that could not be dealt with in the applicant’s responding submissions.
[36] The obligation to address the effects of MD generally would not have focused on the essential question of whether the duty to accommodate had been met in the absence of any evidence from the Applicant that only the # 1 position would accommodate his disability.
[37] The “curt” exchanges between counsel and the investigator on which the Applicant relied to show lack of balance and objectivity is not such as to establish improper investigation, closed mindedness or bias. The exchange of different opinions, in the context of strong advocacy by counsel telling an investigator what issues should be canvassed, does not rise to a level which impeaches the investigation.
D. Fairness of Decision
[38] As indicated earlier, the investigation and the report are the actions and reasons of the Commission for these purposes. Having found nothing unreasonable or unfair in the investigation or its conclusions, there is likewise nothing unreasonable in the Commission’s conclusions.
IV. CONCLUSION
[39] For these reasons, this application for judicial review will be dismissed.
[40] The Court has heard nothing on the matter of costs and why costs should not be ordered in the usual manner. However, the employer did not really participate in this proceeding other than as an observer. The Union has a duty of representation of the Applicant as well as other members of the local. Counsel did not press the cost issue. Therefore, no costs will be awarded to the Respondents.
JUDGMENT
IT IS ORDERED THAT this application for judicial review is dismissed. No costs will be awarded to the Respondents.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1277-05
STYLE OF CAUSE: JOSEPH ELTON LOWE
and
LANDMARK TRANSPORT INC. ET AL
PLACE OF HEARING: Vancouver, B.C.
DATE OF HEARING: November 15 and 16, 2006
APPEARANCES:
|
Mr. Thomas F. Beasley
|
|
|
Ms. Karlene Bateman
|
Teamsters Local Union No. 31 |
SOLICITORS OF RECORD:
|
COUTTS PULVER Barristers & Solicitors Vancouver, B.C. |
|
|
TEAMSTERS LOCAL UNION NO. 31 Delta, B.C.
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Teamsters Local Union No. 31 |