T.D. 1/94
Decision rendered on January 20, 1994
CANADIAN HUMAN RIGHTS ACT
R.S.C., 1985, c. H-6 (as amended)
HUMAN RIGHTS TRIBUNAL
BETWEEN:
BRIAN TWEEDIE
Complainant
-and-
CANADIAN HUMAN RIGHTS COMMISSION
Commission
-and-
HENDRIE AND COMPANY LIMITED
Respondent
TRIBUNAL DECISION
TRIBUNAL: Keith C. Norton, Q.C. Chairman
Jane Armstrong, B.A., LL.B. Member
Jane Ellis, B.A., LL.B. Member
APPEARANCES: Mr. Prakash Diar For the Commission
Ms. Caroline Rowan For the Respondent
DATES AND PLACES
OF HEARING: November 1, 2, 3 & 4, 1993
Toronto, Ontario
November 5, 1993
St. Catharines, Ontario
November 8, 10 & 11, 1993
Toronto, Ontario
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RULING OF TRIBUNAL
INTRODUCTION:
This matter was heard at Toronto in November 1993. A hearing was held
to determine whether the Respondent, Hendrie and Company Limited had engaged
in a discriminatory practice in contravention of Section 7 of the Canadian.Human Rights Act relating to the employment of the Complainant,
Brian
Tweedie.
BACKGROUND:
The Complainant, Brian Tweedie, is fifty-eight years of age and he is
married with two children. He has resided in St. Catharines for thirty-four
years and had worked for the Respondent, Hendrie and Company Limited, from
1964 until 1985.
The Respondent, Hendrie and Company Limited, is a trucking company and
at the material time carried on business in Niagara Falls, Hamilton and
Toronto where it maintained terminals. The Complainant, Brian Tweedie, was
employed out of the Niagara Falls terminal. His immediate supervisor during
the course of his employment was Mr. Guy Joubert and the terminal manager was
Mr. Ernie Cripps. The Comptroller of the company during the material times
of 1985 to 1986 was Mr. Steven Nash and Mr. George C. Hendrie was Director of
Operations. At all material times the union stewards at the Niagara Falls
terminal were Mr. Tom Singer and Mr. Cecil Cooper and the Union Chairman was
Mr. Don Appleyard. The dispatching of the truck drivers was conducted by
three dispatchers under the supervision of Mr. Guy Joubert, one of whom was
Jack Boyer.
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FACTS:
The tribunal finds as fact the following in chronological order:
- October 4, 1964: Brian Tweedie commenced employment with Hendrie and
Company Limited as a truck driver. His duties included loading
machinery, tarping and chaining down loads.
- December 1, 1978: While spreading a tarpaulin over a load Brian Tweedie
fell and suffered injuries to his neck and the left side of his chest
sustaining broken ribs and a bruised left shoulder. The accident took
place at the CN Intermodal Yard in Hamilton, Ontario.
- December 5, 1978 to April 1979: During this period Brian Tweedie
consulted with Dr. Roger Rose, his family doctor, and with specialists
including Dr. Eric Blackman, an orthopaedic surgeon, regarding his
injuries and eventually returned to work in April of 1979 performing the
same heavy work including moving of machinery, tarping and chaining down
loads.
- April 1982: During the course of his employment Brian Tweedie fell from
a ladder striking his left shoulder against a tank and reinjuring his
left shoulder. He did not lose any time off work but commenced
chiropractic treatments.
- September 1982: Mr. Tweedie consulted with Dr. Blackman with respect to
an aggravation of the neck and left arm symptoms which he had been
suffering. A myologram was conducted showing significant degenerative
changes in Mr. Tweedie's spine. He remained off work until 1983, when
he consulted with
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Dr. Tasker, a neurosurgeon at Toronto General Hospital and subsequently
resumed work until May of 1984.
- May 29, 1984: Mr. Tweedie consulted with his family physician regarding
a recurrence of symptoms and was placed off work until he consulted with
Dr. Tasker in July of 1984 and did not resume work until February 5,
1985.
- February 2, 1985: Mr. Tweedie felt able to return to work and consulted
his family physician, Dr. Rose, from whom he obtained a note.
- February 5, 1985: Mr. Tweedie met with his immediate supervisor, Guy
Joubert, and provided him with the letter from Dr. Rose, shown as Tab C,
page 3, Exhibit HR-4 dated February 2, 1985. The note stated "Cervical
disc degeneration. May perform
Toronto
run with limited time of 8-10hours only." They discussed the Toronto run and Joubert stated he was
unable to guarantee eight to ten hours. Mr. Tweedie returned to work on
February 5, 1985, and on February 8, 1985, he suffered a heart attack
causing him to be off work until the end of April, 1985.
- April 1985 to October 1985: Mr. Tweedie consistently worked in excess
of eight to ten hours as disclosed by the time cards entered into
evidence by the Commission. However, he did not complain to his
employer about the number of hours he was required to work for the
Toronto run.
- May 13, 1985: Mr. Tweedie is assessed a permanent disability of 15% by
the Workers' Compensation Board.
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- October 25, 1935: The complainant did not feel well and had a
conversation with the dispatcher, Jack Boyer, advising him that he would
not be coming in to work on October 25th. Mr. Boyer advised Mr. Tweedie
that he had already organized the dispatch for October 25th and would be
short a driver if he was unable to work. An agreement was reached
whereby Mr. Tweedie would perform one run to Toronto and return with a
load of scrap paper. Boyer did not advise his Supervisor, Guy Joubert,
of this arrangement.
Upon the completion of the agreed upon tasks in Toronto, Mr. Tweedie
called to the Niagara terminal to advise of the number of the trailer
which he would be hauling to Niagara Falls. When he called the terminal
he asked for Mr. Boyer but was told that Mr. Boyer was not available.
He then advised the other dispatcher,
John
, of his intention to returnto Niagara Falls and was put through to Mr. Joubert. Mr. Joubert was
advised by John that Mr. Tweedie was intending to return to Niagara
Falls without completing his assignment. Mr. Joubert and Mr. Tweedie
had words.
Mr. Tweedie returned to the Niagara Falls terminal and attended at Mr.
Joubert's office with a Union representative, Mr. Linton. At this time
Mr. Tweedie was handed a memo by Mr. Joubert and was requested to sign
it. When Mr. Tweedie requested an opportunity to read the memo prior to
signing it, the memo was taken from him. The memo contained a notice of
suspension with intention to dismiss. Mr. Tweedie subsequently left the.terminal premises.
- October 28, 1985: Mr. Tweedie wrote to the Workers' Compensation Board
seeking benefits.
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- October 29, 1985: Mr. Tweedie saw his family physician, Dr. Rose who
forwarded a report to the Workers' Compensation Board dated November 1,
1985, indicating that Mr. Tweedie could perform modified work.
- October 31, 1985: The suspension with intention to dismiss was reduced
to a five day suspension. Mr. Tweedie was notified of the five day
suspension by registered letter dated November 4, 1985, and received on
November 6th, 1985.
- November 7, 1985: Mr. Tweedie filed a grievance respecting the
suspension.
- November 8, 1985: A meeting was held between the Union and Hendrie
executives. Present at this meeting were Steven Nash, George C.
Hendrie, David Tilley, Tom Singer, Don Appleyard. Don Appleyard
indicated to George C. Hendrie that a step two grievance should be
anticipated with respect to Mr. Tweedie's suspension.
- November 1985: A letter was forwarded from the terminal management to
Mr. Tweedie asking him to explain his absence from employment. Mr.
Tweedie acknowledged receiving such correspondence although a copy of
the letter is not entered into evidence.
- December 2, 1985: Mr. Tweedie attended at the Workers' Compensation
Board office in St. Catharines and spoke to Don Rode. He advised Don
Rode that he had been terminated by his employer and that he was seeking
alternate work.
- January 1986: A letter was forwarded to Brian Tweedie
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from Tom O'Sullivan of the Hendrie and Company head office asking for
evidence that the Workers' Compensation Board was seeking any further
information from the company and also asking that Mr. Tweedie advise
O'Sullivan of his status.
- January 10, 1986: A grievance meeting was held between the Union and
Hendrie management. Present were Tom Singer, Don Appleyard, Steven Nash
and George C. Hendrie. At this meeting the matter of Brian Tweedie's
grievance was discussed. Neither the union nor management were aware of
Mr. Tweedie's then current status. Time limits were suspended pending
obtaining further information.
- January 13, 1986: George C. Hendrie, Director of Operations forwarded
correspondence to Mr. Donald Appleyard, Union Chairman, confirming the
discussion at the January 10th meeting surrounding Mr. Tweedie's absence
from work. The letter further confirmed that all time limits would be
suspended pending a determination of the facts and until further.information regarding Mr. Tweedie's situation could be determined.
- February 13, 1986: In a letter written to the Workers' Compensation
Board, Mr. Tweedie indicated that he had yet to receive any Workers'
Compensation benefits for the time he had been off work and that he had
been waiting approximately fifteen weeks. As no benefits had as yet
been paid to Mr. Tweedie his Workers' Compensation claim would not
appear in the Respondent company's records. Accordingly, the Respondent
company would not be aware of a Workers' Compensation claim by Mr.
Tweedie.
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- February 1986: Mr. Tweedie attended at the Niagara Falls terminal and
indicated that he was desirous of returning to work. His return to work
was denied as the company took the position that he was in contravention
of the collective agreement in that no satisfactory explanation for his
absence from work from October 25th, 1985, to February 24, 1986, had
been provided to the company. The company was therefore seeking to
suspend Mr. Tweedie's seniority rights thereby terminating his
employment.
- February 24, 1986: A grievance was filed by Mr. Tweedie grieving the
denial of his return to work by the Respondent. Mr. Tweedie set out
that he was of the view that he had provided a reasonable explanation
for being absent from October 25, 1985, to February 24th, 1986, and was
seeking the opportunity to resume his former position. The company's
response, dated February 27, 1986, relied on the provisions of the
collective agreement and stated that Mr. Tweedie's seniority rights were
being suspended until such time as the company had received proof and
was satisfied that Mr. Tweedie had complied with the requirements set
out in the collective agreement, that is, had provided a satisfactory
explanation for his absence from work.
- March 14, 1986: A grievance meeting was held between the Union and
Hendrie and Company Limited executives. Present at this meeting were
George C. Hendrie, Steven Nash, David Tilley, Tom Singer and Don
Appleyard. The Respondent company had received no evidence that Mr.
Tweedie was on compensation. The Union stated that it could provide
such evidence to the Respondent company. The Respondent company took
the position that upon receipt of evidence of the reason for his absence
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they would meet with Mr. Tweedie, the compensation rehabilitation
officer and the Union representative to determine if suitable employment
was available for Mr. Tweedie. The Union advised that it would provide
evidence that Mr. Tweedie had been off on compensation.
- March 20, 1986: A letter was sent by George C. Hendrie, Director of
Operations to Mr. Don Appleyard, Union Chairman regarding the Tweedie
grievance of February 24, 1986. Mr. Hendrie confirmed the position of
the Respondent company that as Mr. Tweedie had produced no evidence to
support his claim of being absent due to medical disability, his
grievance was denied by the company. The letter further confirmed that
the Union gave assurances that it would provide evidence as to Mr..Tweedie's medical disability.
- March 27, 1986: A grievance meeting was held between the Union and the
Respondent company. Present at the meeting were Dave Tilley, Don
Appleyard, Tom Singer, Steven Nash and George C. Hendrie. As no
evidence that Mr. Tweedie was entitled to compensation had been
forthcoming and no explanation as to Mr. Tweedie's absence had been
received from the Union Mr. Hendrie agreed to arrange for a meeting with
the Compensation Board, the Union, Mr. Tweedie and representatives of
the Respondent company.
- April 16, 1986: A meeting was held at the Niagara Falls terminal.
Present were Brian Tweedie, George C. Hendrie, Don Rode, Ernie Cripps,
Guy Joubert, Tom Singer and Cecil Cooper. No justifiable explanation
was provided by Mr. Tweedie or the Union as to Mr. Tweedie's absence
during the period of October 1985 to February 1986. Should such
explanation have been
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forthcoming and accepted by the Respondent company a rehabilitation
assessment was to be arranged by Don Rode with the Workers' Compensation
Board to determine Mr. Tweedie's then current medical restrictions so
that an appropriate job could be found for him at the Respondent
company. A Workers' Compensation Board assessment was never arranged.
- July 1986: Mr. Tweedie again attended at the Niagara Falls terminal
with a letter from his physician, Dr. Rose, which indicated that Mr.
Tweedie could return to his previous job. As the explanation for his
prior absence had not been provided to the Respondent company Mr.
Tweedie was not returned to work.
- July and August 1986: Mr. Tweedie subsequently consulted with Debbie
Kehler of the Niagara North Community Legal Clinic. Ms. Kehler
requested a report from Dr. Rose and in her correspondence requesting
such report indicated that it was her understanding that Mr. Tweedie's
job entailed working ten hours per day with the occasional twelve to
thirteen hour day. This was consistent with Mr. Hendrie's position that
the reference to twelve to thirteen hours per day, if made by him during
the course of his discussion with Ms. Kehler, would have been a
reference to regular work and not the work that Mr. Tweedie would be
required to do in the event that he were to return to work at Hendrie.
- October 20th, 1986: Mr. Tweedie obtained employment with Woodbridge
Foam as a truck driver.
ARGUMENTS AND AUTHORITY:
The Complainant alleged that Hendrie and Company Limited
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discriminated against him by refusing to continue to employ him because of
his disability contrary to section 7 of the Canadian Human-Rights Act (the
Act):.s. 7 It is a discriminatory practice, directly or indirectly,
(a) to refuse to employ or continue to employ any individual, or
(b) in the course of employment, to differentiate adversely in relation
to an employee, on a prohibited ground of discrimination.
Under section 3(1) of the Act, disability
is a prohibited ground of
discrimination.
It was not disputed that Mr. Tweedie's neck injury and shoulder injury left
him with a physical disability within the meaning of the Act.
The Commission submitted that the discriminatory practice engaged in by
the Respondent company took place during the period from February, 1985 to
October, 1985 when the Respondent company failed to abide by the limitation
of hours set out in Dr. Rose's note and that Mr. Tweedie's work day ought to
have been limited to nine hours.
Although Dr. Rose's note recommends that Mr. Tweedie work eight to ten
hours per day, it also specifically suggests, upon the Complainant's request
that he could perform the Toronto run. It is reasonable to conclude that the
Complainant, a twenty-two year employee of the company, would have been well
aware of the demands and requirements of the Toronto run.
The Complainant acknowledged that during his initial discussion with Mr.
Joubert regarding the position, Mr. Joubert indicated he could not guarantee
the hours on the Toronto run. He further acknowledged that from February
1985 to October 1985
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he did not complain to the Respondent about the hours even though he was
consistently working in excess of ten hours per day.
This Tribunal finds that it is unreasonable to expect the Respondent
company to conclude that Mr. Tweedie was unable to perform the assigned work
or that it was aggravating his prior injuries when he had specifically
requested the assignment and during the eight months that he performed it he
did not indicate he was having any difficulties. In fact, had the Respondent
limited Mr. Tweedie's hours or transferred him to another, less demanding
run, because of his prior injuries and without a request from him after he
had specifically requested the Toronto run, that in and of itself might have
been a discriminatiory practice.
Mr. Tweedie was an employee with twenty-two years seniority. This
seniority granted him a considerable flexibility in the assignment he could
choose. Local runs were available to Mr. Tweedie with shorter work days of
eight hours. Mr. Tweedie, with his numerous years of experience with the
company, would have been well aware of the demands of the Toronto run and the
comparative demands of the local runs and notwithstanding this he presented
to his employer a note from his doctor specifically requesting the Toronto
run.
In the view of this Tribunal the Respondent's obligation to accommodate
the employee stops there. The Respondent provided to the employee the
assignment he requested. Unless the employee had subsequently complained and
advised the employer of his inability to perform his duties the Respondent
had no further obligation in this regard. Mr. Tweedie did not subsequently
complain and accordingly it would be unreasonable to expect the employer to.take any further steps without an indication from Mr. Tweedie
that such steps
would be necessary.
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With respect to the Commission's argument, this Tribunal is of the view
that consideration must mainly be given to the period of time after October
25, 1985, and in this regard, finds that there was no discriminatory practice
by the Respondent in its failure to continue the employment of the
Complainant. The Complainant had failed to comply with the provisions of the
collective agreement requiring that a satisfactory explanation of his absence
from work in excess of three days be provided to the Respondent. This was
the reason the company did not return the Complainant to work.
The Union, Mr. Tweedie's representative, was well aware of the
requirements of the Respondent through several meetings with the Respondent
company with respect to Mr. Tweedie's grievance and absence from work. The
Respondent was unaware of Mr. Tweedie's status and it would appear that
despite many requests Mr. Tweedie and the Union failed to provide justifiable
cause for his absence from employment.
This is an unfortunate situation indeed for an employee of twenty-two
years to lose his employment in this fashion. There may have been a
breakdown in the relationship between the Union and Mr. Tweedie who admits
that he advised the Union that he no longer wished them to act for him.
After this time no further steps were taken by the Union to prosecute Mr.
Tweedie's grievances. It appears that the Workers' Compensation Board failed
to arrange for the reassessment agreed upon at the April 16th meeting and it
would further appear that Mr. Tweedie did not follow up with his Workers'
Compensation Board Officer or with the Union with respect to securing his
return to employment.
We find that the request for an explanation for Mr. Tweedie's absence as
a condition for his return to work in February 1986 is not inconsistent with
the procedure followed in February 1985 by Mr. Joubert. In February of 1985,
Mr. Joubert
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received from Mr. Tweedie a letter setting out the type of work to which he
could return without any other explanation for his absence from work. At
that time, however, the company had already been aware of Mr. Tweedie's
absence on Workers, Compensation Board leave.
We were referred to a number of cases establishing that there is no need
to prove an intention to discriminate and that a prohibited ground of
discrimination need not be the sole determining factor in the decision
complained against.
The Tribunal in Richards v. The National Harbours Board (1981.) 2 C.H.R.R.
D/407 stated at page D/411, paragraph 3674:
"However, it cannot possibly be held that mere knowledge of a handicap
or characteristic such as the heart attack in this case, or colour or
sex in other cases, constitutes discrimination. One must prove that the
Complainant suffered an adverse consequence as a result of the handicap.or characteristic, one which he or she would not have suffered if the
handicap or characteristic had not been present."
In that case, the Complainant suffered a heart attack while employed at
the Board. During the period that the Complainant was off sick he wrote a
letter to his employer. The Tribunal found that the letter was limited to
sick benefits and was not a letter of resignation. The employer, however,
had thought at the time that the letter was a resignation and replaced the
Complainant. The Board's General Manager, when the Complainant was well
enough to come back to work, agreed that Mr. Richards would be permitted to
do so but then later wrote to him informing him that there was no suitable
position available.
The Tribunal in the Richards case was urged by the Complainant to find
that the employer had unreasonably misunderstood the Complainant to have
resigned but the Tribunal stated at page D/414, paragraph 3696:
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"The Complainant's onus in this case is not to prove that (the
complainant) was unjustly dismissed, or unfairly treated by the Board,
or that as a result of a misunderstanding, his status as an employee was
adversely affected. He must prove that there was discrimination on the
basis of physical handicap."
In the present case, the onus is on Mr. Tweedie to establish that his
disability was a reason for the Respondent's failure to return him to work.
We are satisfied that disability was not a reason and accept the Respondent's
explanation for not returning Mr. Tweedie to work.
We were reminded by the Commission of the tests set out in Basi v.
Canadian National Railway Co. (1988) 9 C.H.R.R. D/5029 in arriving at a
finding of discrimination. Basi may be distinguished from the instant case
on its facts. In Basi the Complainant was denied an employment opportunity
whereas in the instant case the Complainant was refused a return to work.
In Basi at page D/5039, paragraph 38486, it was held that the Tribunal
may consider the conduct of the Respondent both before and after the alleged
act of discrimination in addition to circumstantial evidence in determining
whether discrimination is present. The Tribunal adopted the test formulated
by B. Vizkelety in her book, Proving Discrimination in Canada (Toronto:
Carswell, 1987), page 142:
"an inference of discrimination may be drawn where the evidence offered
in support of it renders such an inference more probable than the other
possible inferences or hypotheses."
In this case the Tribunal does not find that the Commission and Mr.
Tweedie have met the evidentiary burden. The Complainant's task is to
establish a prima facia case of discrimination according to the civil
standard of proof, being a preponderance of evidence on a balance of
probabilities. There was a lack of evidence from which such an inference of
discrimination could be drawn.
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16.We were referred to and reviewed numerous other authorities argued by
each counsel. We need not refer to them in our analysis given our findings
above.
A case of prima facie discrimination has not been made out and the
complaint is therefore dismissed. We are grateful to counsel for their able
assistance in this matter.
Signed on the 16th day of December, 1993.
Keith C. Norton, Q.C.
Chairman
Jane Armstrong, B.A., LL.B
Member
Janet Ellis, B.A., LL.B.
Member