Hanlon v. City of North Vancouver and another, 2016 BCHRT 123 (Can Lii)
I INTRODUCTION
[1] On October 30, 2015, Robert Hanlon filed a complaint against the City of North Vancouver and the North Vancouver Firefighters’ Association, Local 296 alleging that they discriminated against him in his employment on the basis of mental disability, contrary to s. 13 of the Human Rights Code.
[2] On November 20, 2015, the Tribunal wrote to the parties, advising that Mr. Hanlon’s complaint had been accepted for filing.
[3] On April 20, 2016, the Tribunal wrote to the parties to confirm that, as the matter had not resolved at the early settlement meeting (“ESM”) held earlier that day, the respondents were now required to file their responses to the complaint in accordance with the Tribunal’s Rules.
[4] On May 3, 2016, Mr. Hanlon filed an amended complaint that appears to include allegations falling outside the six-month time limit stated in s. 22 of the Code.
[5] Shortly thereafter, the respondents wrote to the Tribunal regarding their view that the amended complaint significantly increased the length of the complaint from 27 to 43 pages and raised new allegations which were beyond the Code’s six-month limitation period. They also identified that, unless the deadline for response to the complaint was deferred, they would be required to respond to the original complaint now with the potential of having to file a second response to any part(s) of the amended complaint ultimately accepted for filing by the Tribunal.
[6] On May 25, 2016, the Tribunal notified the parties that, given the circumstances, it would be most efficient to address all timeliness issues at this stage and to defer the deadline for response to the complaint pending the Tribunal’s decision on timeliness. The Tribunal then set a schedule for submissions on the time limit issue.
[7] In this decision, I consider whether any part of Mr. Hanlon’s complaint is late-filed and, if so, whether any late-filed part of the complaint should be accepted for filing.
[8] I have considered all of the information filed by all parties. Of the information considered, I only recite that which is necessary to come to my decision. This decision deals solely with the timeliness of the complaint. I make no findings of fact respecting its merits.
II BACKGROUND TO COMPLAINT
[9] Mr. Hanlon is employed by the City of North Vancouver (the “City”) as a firefighter. He is a member of the North Vancouver Firefighters’ Association, Local 296 (the “Union”). The terms and conditions of his employment are governed by a collective agreement between the City and the Union.
[10] Mr. Hanlon commenced a medical leave from work on June 16, 2015.
[11] Mr. Hanlon acknowledges that the allegations in his complaint start February 8, 2015. Notwithstanding this acknowledgment, a considerable portion of the complaint provides detailed information dating back years. Mr. Hanlon states this “background” information demonstrates that he was subjected to a “toxic work environment” at the City’s fire department.
[12] On February 8, 2015, the City commenced an investigation into harassment complaints that had been brought forward by several members of the fire department against Mr. Hanlon. The investigation into these complaints continued over the next two months and culminated in an April 29, 2015 discipline letter that suspended Mr. Hanlon for three weeks, demoted him from the rank of Captain for a period of 12 months and required his attendance at an anger management course and coaching program.
[13] On May 7, 2015, the Union filed a grievance with the City on Mr. Hanlon’s behalf to challenge the discipline imposed. Grievance meetings were held in June and August and the City ultimately denied the Union’s grievance by letter dated August 12, 2015.
[14] Mr. Hanlon’s allegations of discrimination against the City and the Union span a period of several months, involve various types of conduct and are summarized as follows:
- a) February 8 to April 2
9, 2015 – Mr. Hanlon alleges that the City failed to accommodate his medical condition in the timing and manner in which it carried out its investigation into the harassment complaints against him. He says the City was aware of his medical condition and that its investigation interviews were deliberately designed to last four or five hours at a time in order to capitalize on his vulnerability and to put pressure on him.
- b) February 24, 2015 – Mr. Hanlon alleges that, as part of its investigation into the harassment complaints against him, the City improperly required and obtained medical information from his physician regarding his ability to perform the duties of his employment. Mr. Hanlon says this demand for medical information was discriminatory because it was based on the City’s perception that he suffered from a mental disability.
- c) April 29, 2015 – Mr. Hanlon alleges that the discipline issued on April 29, 2015 is tainted by the City’s discriminatory conduct during the investigation and he says the discipline should be revoked as a result.
- d) June 4, 2015 – Mr. Hanlon alleges that he attended a required anger management coaching session with the City’s service provider during which a violence risk assessment was conducted without his knowledge or consent. Mr. Hanlon says this was discriminatory because the City’s reason for conducting the risk assessment was based on stereotypical assumptions about his perceived mental disability.
- e) June 12, 2015 – Mr. Hanlon alleges that the City’s return to work plan following his suspension was discriminatory because the City failed to consider if he was medically fit to perform the duties of the firefighter position or whether he required accommodation of his medical condition in this new position.
- f) June 5 to August 12, 2015 – Mr. Hanlon alleges that the City failed to accommodate his medical conditions during the grievance process. In particular, Mr. Hanlon says that the City discriminated against him when it proceeded with a grievance meeting on August 5, 2015 while he was on medical leave and unable to attend due to his medical condition.
- g) June 18 to October 22, 2015 – the City made improper demands for unnecessary medical information as a means of pressuring Mr. Hanlon to abandon his grievance, quit or retire.
- h) In respect of Mr. Hanlon’s complaint against the Union, he alleges that the Union acquiesced in all of the City’s discriminatory conduct, that the Union failed to accommodate his disability in the investigation and grievance processes, and that the Union failed to perform any meaningful representational duties. Mr. Hanlon says that the Union and the City “worked in tandem” throughout.
III ANALYSIS AND DECISION
- Tribunal’s Jurisdiction to Consider Timeliness
[15] Mr. Hanlon states that his complaint was accepted for filing by the Tribunal’s letter dated November 20, 2015 and he challenges the Tribunal’s jurisdiction to deal with the issue of timeliness. He argues that the Tribunal’s request for submissions on the timeliness of the complaint at this stage constitutes a “reconsideration” of the Tribunal’s decision to accept the original complaint for filing and goes beyond the Tribunal’s “gatekeeper” function associated with the screening of complaints for timeliness. For the reasons that follow, I do not agree.
[16] As no decision has been made by a Tribunal Member in this case, there is nothing for the Tribunal to reconsider. What has happened to date is that the complaint was screened by a Tribunal case manager who then facilitated the scheduling of an ESM. The case manager did not identify that the complaint may be untimely until after the amended complaint was filed in May. At that point, the procedure for addressing the timeliness issue was initiated.
[17] A case manager’s screening determination that it appears a complaint is timely does not oust the ability of the Tribunal to seek submissions on a time limit issue, if it later becomes clear that such an issue exists: Seifi v. North Shore Multicultural Society, 2009 BCHRT 144 (CanLII), at paras. 20-23.
[18] For these reasons, I find that the Tribunal has jurisdiction to deal with the timeliness of this complaint.
- Timeliness
[19] Section 22 of the Code provides:
(1) A complaint must be filed within 6 months of the alleged contravention.
(2) If a continuing contravention is alleged in a complaint, the complaint must be filed within 6 months of the last alleged instance of the contravention.
(3) If a complaint is filed after the expiration of the time limit referred to in subsection (1) or (2), a member or panel may accept all or part of the complaint if the member or panel determines that:
(a) it is in the public interest to accept the complaint, and
(b) no substantial prejudice will result to any person because of the delay.
[20] Section 22 of the Code is a substantive provision which is intended to ensure that complainants pursue their human rights remedies diligently and to allow respondents the comfort of not having to defend stale complaints: Chartier v. School District No. 62, 2003 BCHRT 39.
[21] A continuing contravention under s. 22(2) of the Code requires a succession or repetition of separate acts of discrimination of the same character. There must also be a timely act of discrimination which could be considered a separate contravention of the Code, and not merely one act of discrimination which may have continuing consequences: Lynch v. BC Human Rights Commission, 2000 BCSC 1419 (CanLII). In determining whether there is a continuing contravention, the Tribunal considers all relevant circumstances and endeavours to “draw the line” in a fair and principled way which ensures that individuals who claim discrimination are provided access to the remedial provisions of the Code and that respondents are treated fairly: Dove v. GVRD and others (No. 3), 2006 BCHRT 374, para. 20.
- Time Limit
[22] Mr. Hanlon filed his complaint on October 30, 2015. There is a dispute concerning the calculation of the six-month time limit for the purpose of determining the date on which allegations are late-filed unless they are part of a timely continuing contravention under s. 22(2).
[23] The respondents argue that all of the allegations in the complaint, up to and including the April 29, 2015 discipline letter, are untimely, while Mr. Hanlon argues that the April 29, 2015 discipline letter is within the six-month time limit.
[24] Rule 9(4) of the Tribunal’s Rules of Practice and Procedure concerns the calculation of time for the purposes of determining filing deadlines. Rule 9(4) says that “days are accounted by excluding the first day and including the last day”. Applying this rule, the deadline for filing a complaint regarding an incident that happened on April 29, 2015 is October 29, 2015.
[25] Mr. Hanlon cites Ms. F v. Health Authority, 2016 BCHRT 12 (CanLII) at para. 17 in support of his position. Ms. F reads as follows in respect of a complaint concerning an event that transpired on November 3, 2014:
As November 3, 2014 is, by virtue of s. 25(5) of the [Interpretation] Act, excluded from the calculation and applying as well s. 29, the filing time limit ran from November 4, 2014, until May 3, 2015. However, as May 3, 2015 fell on a Sunday, under s. 25(2) and (3) of the Act, the filing time limit was extended until May 4, 2015.
[26] The cited sections of the Interpretation Act are as follows:
25(2) If the time for doing an act falls or expires on a holiday, the time is extended to the next day that is not a holiday.
(3) If the time for doing an act in a business office falls or expires on a day when the office is not open during regular business hours, the time is extended to the next day that the office is open.
(4) In the calculation of time expressed as clear days, weeks, months or years, or as “at least” or “not less than” a number of days, weeks, months or years, the first and last days must be excluded.
(5) In the calculation of time not referred to in subsection (4), the first day must be excluded and the last day included.
. . .
29 …“holiday” includes (a) Sunday …
[27] In my view, the Tribunal’s decision in Ms. F does not assist Mr. Hanlon. Here, April 29, 2015 is excluded by virtue of s. 25(5) of the Interpretation Act and Rule 9(4) and the time limit ran from April 30, 2015 until Thursday, October 29, 2015. Unlike in Ms. F, where the final day within the six-month time limit fell on a Sunday and was therefore extended one day (by virtue of ss. 22(3) and 29 of the Act, which is consistent with the Tribunal’s Rule 9(5)), October 29, 2015 was a regular business day and was therefore the deadline for filing: see Quinn v. BMO Nesbitt Burns Inc., 2004 BCHRT 231 at paras. 11-13.
[28] Mr. Hanlon filed his complaint on October 30, 2015. As a result, any alleged acts of discrimination that occurred before April 30, 2015 are out of time unless they form part of a timely continuing contravention under s. 22(2) of the Code.
- Continuing Contravention against the City
[29] At issue is whether the allegations of discrimination that occurred before April 30, 2015 constitute a continuing contravention with the timely portion of the complaint. The timely allegations of discrimination in Mr. Hanlon’s complaint are briefly stated as follows:
- June 4, 2015 – the City’s decision to subject him to a violence risk assessment without his knowledge was based on stereotypical assumptions about his perceived mental disability;
- June 12, 2015 – the City’s return to work plan following his disciplinary suspension failed to consider if he was medically fit to perform the duties of the firefighter position or if he required accommodation of his medical condition in this new position;
- June 5 to August 12, 2015 – the City failed to accommodate his medical conditions during the grievance process and when it proceeded with a grievance meeting in his absence while he was on medical leave and unable to attend due to his condition; and
- June 18 to October 20, 2015 – the City made improper demands for unnecessary medical information as a means of pressuring him to abandon his grievance, quit or retire.
[30] The allegations that pre-date April 30, 2015 concern the City’s request for medical information on February 13, 2015, the City’s failure to accommodate Mr. Hanlon’s medical condition in its investigation (February 8 to April 29, 2015) and the April 29 discipline letter.
[31] Mr. Hanlon argues that the allegations in his complaint constitute a continuing contravention of the Code because the City made improper requests for medical information throughout and failed to accommodate his disability in the investigation and grievance processes.
[32] Mr. Hanlon acknowledges the allegations in his complaint commence February 8, 2015. However, as previously discussed, his complaint contains detailed “background” information in support of his view that the North Vancouver Fire Department is a “toxic work environment”. Against that backdrop, Mr. Hanlon explains that the City’s conduct up to February 2015 affected his health by causing him anxiety.
[33] Mr. Hanlon says that, on November 4, 2014, he advised the City that he had been to the hospital because the stress of a recent workplace meeting caused him anxiety. He says that, in January 2015, he advised the City that he was suffering the effects of stress, that his health was better and that he was on medication. Finally, he says the City was aware that his brother had been diagnosed with terminal cancer in November 2014 and passed away in March 2015. Mr. Hanlon argues that, if the City did not have actual notice, it had constructive notice of his anxiety.
[34] While Mr. Hanlon alleges that the City had notice of his anxiety prior to February 8, 2015, in the medical certificate dated February 24, 2015, Mr. Hanlon’s attending physician certifies that he is able to perform all of his job duties as a Suppression Captain on a full-time basis and answers material questions as follows:
- Does the employee have a medical condition that affects his ability to perform his job duties as described above?
No. but Mr. Hanlon, has recently been troubled by fairly severe family stress, but from what I understand, his problems at work predate this.
- Does the employee have a medical condition that has caused the behaviours described above?
No. except recently, as above.
. . .
- If the employee has a chronic condition or recurring medical condition, will this chronic or recurring medical condition cause the behaviours or affect the employee’s performance of their job duties on a regular basis for the foreseeable future?
N/A
[35] Mr. Hanlon argues that his allegations constitute a continuing contravention of the Code because, when medical certificates confirmed that he had a mental disability, the City did not accommodate him but, rather, simply pressed on with its investigation and grievance processes. In respect of the February 24 medical certificate, he argues that, while it was not written in the clearest of language, it did indicate he was suffering from mental health concerns. Mr. Hanlon says the City ignored those concerns, failed to accommodate him and simply carried on with the harassment investigation “in a manner that was either deliberately done to ensure that [his] mental health suffered maximum impact or utterly reckless as to the impact”.
[36] The City argues that “stress” and “problems at work” are not a mental disability for the purposes of the Code: Matheson v. School District No. 53 (Okanagan Similkameen) and Collis, 2009 BCHRT 112 (CanLII). The City says that Mr. Hanlon did not request an accommodation and argues that there was no reason to suspect that an accommodation would be needed following the City’s receipt of the February 24 medical certificate.
[37] Mr. Hanlon argues that the phrase “problems at work” is a veiled reference to the fact that he was suffering from anxiety. He says the reference is veiled because the fire hall is an environment where mental health conditions are kept private due to the associated stigma.
[38] In my view, Mr. Hanlon’s allegation against the City in this regard does not disclose an incident that could, if proven, contravene the Code because he does not allege facts that could give rise to a duty to inquire whether he needed accommodation in the investigation process. The February 24 medical certificate states that Mr. Hanlon’s work problems happened prior to the recent family stress that he was experiencing at the time. I acknowledge the certificate reports that he was experiencing fairly severe family stress and recognize that the emotional strain of stress can be a very difficult experience. However, it is well settled that “stress” is not a disability for the purposes of the Code: Matheson at para. 24.
[39] Mr. Hanlon argues that Matheson is distinguishable because Ms. Matheson did not notify her employer of an ongoing mental health issue or provide any evidence in support of her mental disability like Mr. Hanlon has here. In my view, while it is true that he provided evidence in support of his alleged mental disability via the June 16, 2015 medical certificate which read, “Mr. Hanlon is suffering anxiety, depression and insomnia due to workplace issues. I have recommended a medical leave of absence for 4-6 weeks”, the February 24 medical certificate does not support that he was experiencing a mental disability at that time. Rather, it certifies that Mr. Hanlon is able to perform all of his job duties. While notification of a disability is not needed to engage the duty to inquire, the reference to stress in the context of the February 24 medical certificate does not support that the City reasonably ought to have been alerted that Mr. Hanlon may have needed accommodation of a disability in respect of the investigation.
[40] In my view, as Mr. Hanlon does not allege facts that, if proven, could amount to a breach of the Code in respect of the allegation that the City failed to accommodate him in the investigation, the allegation cannot amount to a continuing contravention under s. 22(2).
[41] Mr. Hanlon also argues that the City’s requests for medical information in February, June and onward constitute a continuing contravention of the Code because the requests were all overly intrusive, seeking information that the City was not entitled to in the circumstances. The City argues that the medical information it sought during its investigation is substantially different than the medical information it sought during Mr. Hanlon’s medical leave.
[42] In my view, the factual character of the February 13, 2015 request for medical information is substantially different from that of the timely requests. The February request sought medical information in the context of a disciplinary investigation to determine if Mr. Hanlon was fit for duty and whether any of his reported behaviour was related to a medical condition. From June 16, 2015 onward, the City’s requests for medical information were made in the context of a medical leave.
[43] In my view, the City’s requests for medical information on February 13 and from June 16 onward are substantially different in character and, thus, cannot amount to a continuing contravention under s. 22(2).
[44] Finally, Mr. Hanlon argues that the investigation and the discipline are inextricably linked. He alleges that the April 29, 2015 discipline letter discriminates against him on the basis of mental disability because the discipline is the result of an investigation that was fundamentally flawed from a human rights perspective. In addition to the City’s alleged failure to accommodate discussed above, he also says that an underlying reason for the initiation of the investigation and the City’s February 13 request for medical information was his perceived mental disability.
[45] In my view, the allegations in respect of the April 29, 2015 letter do not disclose an incident that could, if proven, contravene the Code. First, a flawed investigation does not mean the outcome was discriminatory and, as discussed above, the allegations did not support a conclusion that the City reasonably ought to have been aware of a need for accommodation. Second, Mr. Hanlon does not allege facts that could, if proven, establish his claim that an underlying reason for the April 29, 2015 discipline letter was his perceived mental disability. As discussed above, the City did not discipline Mr. Hanlon until after it received the February 24, 2015 medical certificate in which his attending physician certified that he was able to perform all of his job duties. The complaint does not support an inference that the City deliberately or recklessly pursued the investigation in whole or in part because of a perception of Mr. Hanlon’s mental disability.
[46] In my view, there are no facts alleged that could, if proven, establish that the discipline imposed on Mr. Hanlon was discriminatory on the basis of mental disability, actual or perceived. As such, Mr. Hanlon’s allegations in respect of the April 29, 2015 discipline letter cannot amount to a continuing contravention under s. 22(2) of the Code.
[47] For these reasons, the allegations of discrimination against the City that occurred before April 30, 2015 are late-filed.
- Discretion to Accept Late-Filed Complaint against the City
[48] The Tribunal has discretion to accept late-filed complaints under s. 22(3) of the Code. The onus is on the complainant to persuade the Tribunal both that it is in the public interest to accept the late-filed complaint and, that no substantial prejudice would result to any person because of the delay in filing: Chartier at para. 12.
[49] Mr. Hanlon argues that the late-filed part of the complaint should be accepted in the public interest because the matter involves a serious complaint of discrimination and failure to accommodate. He argues that the delay is so minor that no prejudice arises.
[50] Given my view that the complaint does not allege facts that, if proven, could amount to a breach of the Code in respect of the discipline letter or the City’s alleged failure to accommodate Mr. Hanlon in the investigation process, the late-filed allegation that remains concerns the City’s February 13, 2015 request for medical information.
Public Interest
[51] Whether it is in the public interest to accept a complaint filed outside the six-month time limit is a multi-faceted consideration, which is governed by the purposes of the Code, and done on a case-by-case basis. Factors that may be important considerations in determining whether it is in the public interest to accept a late-filed complaint include the reasons for the delay, the length of the delay, the significance of the issue raised in the complaint and fairness in all the circumstances. The list of factors that the Tribunal may consider is non-exhaustive: British Columbia (Ministry of Public Safety and Solicitor General) v. Mzite, 2014 BCCA 220 (CanLII), Hoang v. Warnaco and Johns, 2007 BCHRT 24.
Length of Delay
[52] Mr. Hanlon alleges that the City’s February 13, 2015 request for medical information discriminated against him on the basis of a perceived mental disability. The complaint in respect of this allegation is nearly 11 weeks late-filed which is significant but not insurmountable if other factors weigh in favour of accepting the complaint in the public interest: Naus v. Qualicum School District No. 69, 2014 BCHRT 14 (CanLII), para. 14.
Reasons for Delay
[53] Mr. Hanlon says that he delayed in filing his complaint because the City and the Union were late in providing their respective responses to his November 25, 2015 requests for access to information under the Freedom of Information and Protection of Privacy Act (“FIPPA”) and the Personal Information Protection Act. Mr. Hanlon identifies six items that contain information that he says he only became aware of after he received the responses to his access requests. Of these six items, one references exceptions to disclosure of information under FIPPA and three concern matters that are within the timely portion of the complaint. The remaining items are an undated article about Obsessive-Compulsive Personality Disorder and a March 2015 email exchange between the City and the Union concerning the investigation.
[54] Mr. Hanlon relies on Fullerton v. Rogers Foods, 2015 BCHRT 49 (CanLII) to support his argument. In Fullerton the Tribunal held that, where a complainant does not discover the material facts forming the basis of the complaint until after the six-month time limit for filing, this may be a relevant factor in determining whether to accept the complaint under s. 22(3) of the Code. I distinguish Fullerton on the basis that Mr. Hanlon filed his complaint that the City discriminated against him on the basis of mental disability in its investigation and in its requests for medical information before he received the response to his FIPPA request. In other words, as he had already filed his complaint; logically, the material facts forming the basis of that complaint were known to him. In my view, Mr. Hanlon’s submissions concerning his FIPPA request do not explain why he could not file his complaint in a timely manner.
[55] Mr. Hanlon also says that he was delayed in filing his complaint because the Tribunal’s ESM delayed things. Again, in my view, as the ESM was scheduled and conducted after he had already filed his complaint, this argument does not explain why Mr. Hanlon could not file his complaint in a timely manner.
Novelty of Complaint
[56] In determining whether acceptance of a late-filed complaint is in the public interest, the Tribunal has also considered whether there is anything particularly unique, novel, or unusual about the complaint that has not been addressed in other complaints. Where a complaint raises a novel issue on behalf of a vulnerable group, for example, that is a factor that may be considered in weighing the public interest in accepting the complaint: Mzite, paras. 65-66.
[57] Mr. Hanlon says that his complaint raises novel issues including: the impact of a “toxic firefighting culture” on the mental health of a long-term firefighter, “the use of medical information as an investigation tool where there is a bona fide question about the employee’s mental health”, and the use of medical certificates as a tool to harass an employee by the City and Union “working in tandem”. I am not persuaded by the argument that the novelty of his human rights complaint is strong enough to tip the balance in favour of accepting the late-filed part of the complaint in the public interest. The Tribunal has frequently addressed complaints of discrimination on the basis of mental disability in the employment context under s. 13 of the Code including, specifically, within fire departments: Rush v. City of Richmond and another, 2011 BCHRT 244 (CanLII); Rush v. City of Richmond, 2008 BCHRT 62 (CanLII).
[58] Considering all of the circumstances, I am not persuaded that it is in the public interest to accept the late-filed part of the complaint. Given this conclusion, I need not consider whether substantial prejudice would result to anyone as a result of the delay.
- Complaint against the Union
[59] Mr. Hanlon alleges that the Union discriminated against him in his employment on the basis of mental disability contrary to s. 13 of the Code because the Union and the City “worked in tandem”. He alleges that the Union acquiesced in all of the City’s discriminatory conduct, failed to accommodate his disability in the investigation and grievance processes, and failed to perform any meaningful representational duties throughout.
[60] Mr. Hanlon argues that his allegations against the Union are timely or, in the alternative, that they amount to a continuing contravention of the Code. He argues, in the further alternative that, if his allegations were late-filed, they should be accepted in the public interest.
[61] The Union argues that there can be no continuing contravention of the Code because Mr. Hanlon has not alleged any facts that, if proven, could establish that his mental disability was a factor in any adverse treatment by the Union.
[62] Mr. Hanlon alleges that the Union had full knowledge of his medical condition and that it discriminated against him when it failed to seek accommodation of his medical condition in respect of the scheduling and length of the City’s investigation meetings. The Union says that Mr. Hanlon did not inform it that he was suffering from a mental illness during the investigation and that he did not ask to postpone any of the investigation meetings. The Union says that each time Mr. Hanlon was asked whether he was well enough to attend a meeting, he said he was fine.
[63] Mr. Hanlon alleges that the Union pressured him to attend the June 5 grievance meeting when it knew or ought to have known that he suffered from a medical condition that affected his ability to participate in the meeting and that he required accommodation. Mr. Hanlon commenced medical leave on June 16 and, shortly thereafter, he asked that the next grievance meeting be postponed. It is undisputed that the City asked Mr. Hanlon to have his doctor complete a medical questionnaire that asked whether he was medically fit to advise or instruct the Union with respect to his grievance and that the July 1 medical certificate submitted in response stated that Mr. Hanlon was medically unable to deal with the grievance and that “he will be seeking legal counsel as he is unable to present his own case properly”.
[64] On July 2, Mr. Hanlon informed the Union that he was unable to attend the next grievance meeting due to his medical condition. It is undisputed that the Union responded via an email message in which it told Mr. Hanlon that the doctor’s statement that he was not medically fit to instruct the Union and “he will be seeking legal counsel” appeared contradictory because if he was able to instruct legal counsel, presumably he was also well enough to instruct the Union. Given this apparent contradiction, the Union said that it would need stronger medical evidence in order to persuade the City to delay the next grievance meeting. The Union advised Mr. Hanlon to have his doctor provide a supplemental letter that spoke specifically to his inability to instruct the Union in respect of the grievance as soon as possible. The Union then proceeded to set out a contingency plan in the event that the City refused to postpone the grievance meeting.
[65] Mr. Hanlon alleges that the Union discriminated against him when it failed to accommodate his disability in the grievance process by postponing the grievance meetings. In respect of the June 5 grievance meeting, the Union says that Mr. Hanlon did not request accommodation or inform it that he was suffering from a disability that required accommodation. The Union says that it did not have any reason to believe that he required accommodation at that meeting. In respect of the second grievance meeting, the Union says that, when Mr. Hanlon asked that the meeting be postponed until he was medically able to attend, the Union repeatedly asked the City to delay the meeting. The Union further says that it advised Mr. Hanlon to obtain better medical evidence in support of his position that he was medically unable to instruct the Union in respect of the grievance, however, Mr. Hanlon did not do so.
[66] Mr. Hanlon alleges that the Union discriminated against him on the basis of mental disability when it failed to object to the City’s February 13 and subsequent requests for medical information. Mr. Hanlon further alleges that the Union’s June 28 email message aggravated his medical condition. In that message, the Union advised him that the City would likely place him on unpaid leave if he did not comply with the City’s request for medical information and that there would be little the Union could do to contest this.
[67] In my view, Mr. Hanlon’s allegations against the Union fail to set out a possible prima facie case of discrimination contrary to the Code. While they show dissatisfaction and may show poor representation, none of them demonstrate a connection between those adverse impacts and his mental disability. As discussed above, the February 24 medical certificate does not support that Mr. Hanlon was experiencing a mental disability at that time. Moreover, the reference to stress in the context of the February 24 medical certificate does not support an inference that the Union reasonably ought to have been alerted that Mr. Hanlon may have needed accommodation of a disability in respect of the investigation. Likewise, his allegations in respect of the Union’s failure to accommodate his disability in the grievance process do not support an inference that the Union reasonably ought to have been alerted that Mr. Hanlon may have needed accommodation of a disability in respect of the June 5 grievance meeting. Finally, Mr. Hanlon’s allegations that the Union should have done more to try and persuade the City to postpone the August 5 grievance meeting and objected to the City’s requests for medical information are not allegations of discrimination by the Union on the basis of mental disability. Rather, these are allegations that the Union breached its duty to represent Mr. Hanlon in failing to challenge what he viewed as discriminatory conduct by the City.
[68] Allegations of inadequacy of representation will not, save in exceptional circumstances, establish union liability under s. 13 of the Code. A union can only become a party to workplace discrimination under s. 13 in one of two ways: (i) by participating in the formulation of a work rule, such as a collective agreement provision, that has a discriminatory effect; or (ii) by impeding the reasonable efforts of an employer to accommodate: Renaud v. Central Okanagan School District No. 23, 1992 CanLII 81 (SCC), [1992] 2 S.C.R. 970.
[69] In his reply submission, Mr. Hanlon concedes that he does not allege that the Union impeded the City’s efforts to accommodate. Further, the complaint does not allege that the Union participated in the formulation of a work rule that had a discriminatory effect. As a result, Mr. Hanlon cannot establish that the Union discriminated against him in his employment on the basis of mental disability contrary to s. 13 of the Code.
[70] In my view, Mr. Hanlon’s allegations against the Union amount to a complaint that the Union has breached the duty of fair representation set out in s. 12 of the BC Labour Relations Code. His complaint in this regard belongs in the labour forum.
[71] As Mr. Hanlon’s allegations against the Union do not disclose incidents that could, if proven, amount to a breach of the Code, they cannot amount to a continuing contravention under s. 22(2). Given this conclusion, it is not necessary to address the issue of whether I should exercise my discretion to accept the complaint in the public interest under s. 22(3) of the Code.
[72] Mr. Hanlon’s allegations against the Union are not accepted for filing as they do not disclose incidents that could, if proven, amount to a breach of the Code.
IV CONCLUSION
[73] For the reasons set out above, I find:
- The complaint against the Union is not accepted for filing;
- All allegations of discrimination in the complaint against the City that occurred before April 30, 2015 are not accepted for filing; and
- I confirm that the following timely allegations of discrimination in the complaint against the City are accepted for filing:
- a) June 4, 2015 – allegation that the violence risk assessment conducted by the City’s service provider was discriminatory because it was based on stereotypical assumptions about Mr. Hanlon’s perceived mental disability;
- b) June 12, 2015 – allegation that the City’s return to work plan following his suspension was discriminatory because the City failed to consider if he was medically fit to perform the duties of the firefighter position or whether he required accommodation of his medical condition in this new position;
- c) June 5 to August 12, 2015 – allegation that the City failed to accommodate Mr. Hanlon’s medical conditions during the grievance process, including when the City proceeded with the August 5 grievance meeting while he was on medical leave and unable to attend due to medical reasons; and
- d) June 18 to October 22, 2015 – allegation that the City’s requests for medical information during this period were improper.
[74] The case manager will notify the parties of the new date for response to the complaint.
[75] Finally, I acknowledge that Mr. Hanlon’s amended complaint and submissions in respect of the timeliness issue appear to contain allegations of retaliation under s. 43 of the Code. The retaliation allegations have not yet been through the Tribunal’s initial screening process and are not properly before me. As such, I do not address them further in this decision. Mr. Hanlon will receive correspondence from the Tribunal regarding the retaliation allegations in due course.
Barbara Korenkiewicz , Tribunal member