St. John's (City) v. Human Rights Commission, 2011 NLTD(G) 83 ("Ryan")
Sean Ryan was an employee of the City of St. John’s (“the City”), and a member of the Canadian Union of Public Employees, Local 569 (“CUPE”). Mr. Ryan worked in labour-based temporary/seasonal positions with the City from 1984 until his termination in 1998. Mr. Ryan has a diagnosed bipolar disorder, and was receiving psychiatric treatment during the relevant period. His employment was terminated after he refused to sign an agreement with his employer which would have allowed his employer ongoing access to particular information from his doctor about his long-standing mental health issue.
Mr. Ryan filed two related human rights complaints against his employer and union, as well as a grievance which proceeded to arbitration based on the same issues. The first complaint alleged that the employer had discriminated against Ryan on the basis of mental disability by imposing conditions on his employment and by terminating his employment in December 1998. The second human rights complaint alleged that the Respondents had discriminated against Ryan on the basis of mental disability with regards to a Memorandum of Agreement (“MOA”) that formed part of a back-to-work agreement with respect to Mr. Ryan. The Human Rights Board of Inquiry decision into the second of the two human rights complaints was the focus of the Court’s review.
A Grievance Arbitration Board (based on a grievance made pursuant to the Collective Agreement) found that Mr. Ryan’s performance at work was relatively smooth until the spring of 1998, when Mr. Ryan’s mental health deteriorated, resulting in an absence from work. The Arbitration Board found that in June, 1998, the Union and City management reached a set of terms under which Mr. Ryan could continue to work. These included blood testing to ensure medication compliance, agreement to allow his physician to share information with the City and appropriate behavior at work. Failure to abide by the terms of the agreement would include suspension without pay and possible termination for cause. Mr. Ryan agreed to the terms and returned to work. Further workplace incidents occurred in June 1998. Mr. Ryan was subsequently hospitalized, did not return to work, and was ultimately terminated from his position. A grievance ensued. The Arbitration decision reinstated Ryan based on a finding that the City did not properly seek medical information to assist them in accommodating his disability. The decision provided guidelines to assist the parties in dealing with the griever’s needs. Based on these guidelines, Union Local 569 and the City created a Memorandum of Agreement (“MOA”) which was ultimately approved by the Arbitration Board. Among other conditions, the MOA required Ryan’s physician to notify the City of any deterioration in his condition, and specifically of medication non-compliance. Mr. Ryan refused to sign the MOA.
Board of Inquiry Decision
The Human Rights Board of Inquiry (“BOI”) found that the City and CUPE Local 569 discriminated against Ryan, by the drafting and imposition of the MOA and the letter and termination (although the BOI dismissed as against CUPE National Union). The Respondents appealed the BOI’s order for $20,000 in general damages for pain and suffering as against the City and CUPE Local 569.
Supreme Court Trial Division (General)
The Court considered the questions of whether the terms of the MOA constituted discrimination under the Human Rights Code, and if so, whether the City or Union could establish the terms of the MOA were a good faith occupational requirement to prove they accommodated Ryan to the point of undue hardship.
The Court found that there was no question the MOA distinguished between Ryan and other employees on the basis of Ryan’s mental disability, and further noted that the Code did not require that the burden imposed on Ryan had to violate his essential dignity or freedom in order to be found to be discriminatory. Applying the reasonableness standard, the Court found that the BOI’s finding that the terms of the MOA sought information about Mr. Ryan’s medical condition beyond what was necessary was unreasonable. Mr. Justice Hall stated:
111... how could the city have remained reasonably assured that Mr. Ryan was maintaining sufficient mental health ... to perform his duties safely without a process similar to that established by the MOA? The decision of the BOI that a mere certification of unfitness-for-work would have been sufficient ignores the evidence ... with respect to the onset of the manic phase of Mr. Ryan’s illness. The BOI decision that a mere certificate of unfitness-for-work would have satisfied the requirements of the City in this regard is a failure on the part of the BOI to be mindful of the fuller legal framework regarding the enterprise of the City. ... the BOI... was requiring full compliance with human rights legislation but failing to take into account it might be forcing the City into non-compliance with other legal obligations. These ... would include liability for the tort of an employee in the injury of citizens, liability under Worker’s Compensation law for injury to employees, liability under safe workplace standards, etc. ...
The City also argued that the BOI should have assigned greater weight to the Arbitration decision as it related to the terms of the MOA, and that the BOI’s failure to do so constituted abuse of process. The Court agreed, stating:
123 I am satisfied that in coming to its award, the Arbitration Board adequately considered human rights implications in its decision. It ordered provisions which were ultimately incorporated into the MOA which MOA was sanctioned by the Arbitration Board. Thus the issue was fully decided. By the Human Rights Commission assuming jurisdiction over a complaint arising from the same fact situation it ran the risk of rendering a decision contrary to the instruction of the Arbitration Board, which clearly sanctioned the MOA as being non-discriminatory. Clearly there must not be turf wars between arbitration boards appointed pursuant to collective agreements on the one hand and the Human Rights Commission on the other. The legislation never intended that result in creating these concurrent jurisdictions. ...
On this basis, Justice Hall stated that the decision of the BOI was both incorrect, and a violation of the principle of res judicata and constituted a collateral attack on the decision of the Arbitration Board.
The Court also found that the BOI erred in finding that CUPE Local 569 had failed its duty of fair representation, as Justice Hall found that the Human Rights Commission has no jurisdiction to decide this issue.
With respect the issue of quantum of damages the City argued the amount was excessive. Mr. Justice Hall found that while there was no requirement to address this issue, in light of his finding that the MOA constituted a bona fide occupational requirement, that the appropriate award in the circumstances would have been $7,500.00.
Impact of the Ryan decision on Commission Process and Procedure
In 2010, the Newfoundland and Labrador Human Rights Code was repealed in its entirety and replaced with the Human Rights Act, a new piece of legislation which updated the protections and processes of the Human Rights Commission. Among the procedural changes was the addition of deferral and dismissal and powers for the Executive Director (sections 31 and 32 of the Act, respectively). Under the new Act, the Executive Director may defer a complaint where “another proceeding is capable of appropriately dealing with the substance of a complaint”, and may dismiss all or part of a complaint where “the substance of the complaint or that part of the complaint has been appropriately dealt with in another proceeding.” Parties may seek judicial review of the Executive Director’s dismissal of a complaint, but there is no legislated review of a deferral. The court’s decision in Ryan may impact the Executive Director’s use of these powers with respect to complaints where there is ongoing grievance arbitration with respect to the same workplace issues.
For more information, contact the NL Human Rights Commission
1 (800) 563-5808, or see our website for the full decision: http://www.justice.gov.nl.ca/hrc/complaints/decisions.html