BOARD OF INQUIRY {Human Rights Code) IN THE MATTER OF the Human Rights Code, R.S.O. 1990, c. H.19, as amended; AND IN THE MATTER OF a complaint by Kevin Bubb-Clarke, amended October 29, 1998, alleging discrimination with respect to membership in a trade union because ofhandicap by the Amalgamated Transit Union, Local 113; AND IN THE MATTER OF a complaint by Kevin Bubb-Clarke, amended October 29, 1998, alleging discrimination in employment because ofhandicap by the Toronto Transit Commission; BETWEEN: Ontario Human Rights Commission -and- Kevin Bubb-Clarke Complainant -and- Toronto Transit Commission and Amalgamated Transit Union, Local 113 Respondents DECISION Adjudicator: The Honourable Alvin B. Rosenberg, Q.C. Date: April 4, 2002 Board File No.: BI-0394-01 Decision No.: 02-006 BoardofInquiry(HumanRightsCode) 505 UniversityAvenue 2ndFloor,Toronto,ON M5G2P3 Phone(416)314-0004Tollfree 1-800-668-3946 Fax: (416)314-8743 TTY: (416)314-2379 TTYTollfree: 1-800-424-1168 ONTARIO WORKPLACE TRIBUNALS LIBRARY 505 University Avenue, 7th Floor Toronto, ON M5G 2P2 APPEARANCES Ontario Human Rights Commission Anthony P. Griffin, Counsel Kevin Bubb-Clarke, Complainant on his own behalf Amalgamated Transit Union, Susan M. Ursel and Local 113, Respondent Janice Chung, Counsel Toronto Transit Commission Angela E. Rae, Counsel 1 ISSUE Although there are many subsidiary issues, the major determination to be made is whether or not the Amalgamated Transit Union, Local 1 13 (the "Union") was in breach of the Ontario Human Rights Code (the "Code"), R.S.O. 1990, c. H.19, as amended, by refusing to accommodate Mr. Kevin Bubb-Clarke by allowing him to accrue seniority for all ofthe time that he has been employed by the Toronto Transit Commission (the "TTC"). After the first few days ofhearing, Mr. Griffin and Ms. Rae advised that the Commission and Mr. Bubb-Clarke and the TTC had entered into Minutes of Settlement. However, since the Minutes ofSettlement provided that the TTC did not oppose certain types oforders that might be made by me, I did not have the Minutes of Settlement implemented until the release of my decision, but advised Ms. Rae that there was no need for her to attend the continued hearings and she did not. THE FACTS Most of the facts are not in dispute. Mr. Bubb-Clarke himself testified and was cross- examined. Where his evidence differs from that ofother witnesses, I accept his evidence. In over 55 years of observing witnesses, I have never encountered a more credible witness. When asked a question, Mr. Bubb-Clarke answered the question and did not argue. He did not stop to try to anticipate what argument his answer might support. He did not attempt to counter any adverse inferences that might arise from his answer. Witnesses and counsel would be well advised to consider his example. It affects their credibility when asked a question that has an obvious answer when, instead of an affirmative reply, they choose to argue against the implications that could arise from that reply. Some witnesses and counsel go further and repeat earlier arguments in what appears to be an attempt to obscure the impact of the answer to the question. 1 • Mr. Bubb-Clarke commenced work at the TTC on October 21, 1986, as an operator of a public vehicle in the TTC's Transportation Division. He accrued seniority as an operator, in accordance with the provisions ofthe collective agreement between the TTC and the Union. Mr. Bubb-Clarke remained in the position of operator - first as a street car driver, and then as a bus operator at the Birchmount division ofthe TTC until July 17, 1990, at which time he commenced a sick leave as a result ofa medical condition that was not yet diagnosed. In October 1990, Mr. Bubb-Clarke returned to work, assuming the position ofRear-door Loader at the Russell Division. He remained classified as an Operator, working part-time and receiving supplementary sickness benefits. In February 1991, Mr. Bubb-Clarke was diagnosed with narcolepsy, which resulted in the downgrading ofhis driver's licence. It was determined by the TTC's medical department that, based upon the medical evidence, restrictions would be placed upon the work available to Mr. Bubb-Clarke: that he not work nights, and that he not drive TTC vehicles offTTC property. From 1991 to February 1996, since Mr. Bubb-Clarke could no longer perform his regular duties, he was assigned to a variety ofpositions in the Maintenance Division, as opposed to the Transportation Division: (a) He performed rear-door loading assisting passengers, from October 1990 to June 1991; (b) He worked at Davisville - subway yard (or carhouse) as an operator helper at Davisville station training, from June 1991 until the closure of Davisville yard, at which time the employees from Davisville moved to the Wilson Carhouse; (c) He worked in Maintenance at Wilson Carhouse. Seniority that accrued while holding a position or positions within the Transportation Division and seniority that accrued while holding a position or positions within the Maintenance Division are not mutually transferable under the relevant collective agreement between the TTC and the Union. On or about Wednesday, February 13, 1996, Mr. Bubb-Clarke's supervisor showed him an interoffice memo addressed to the supervisor, but concerning Mr. Bubb-Clarke, which indicated that Mr. Bubb-Clarke should see Ron Smale, the superintendent ofTransportation at Birchmount. The memo indicated that ajob should be found for Mr. Bubb-Clarke within the Transportation Division, and that ifone were not found Mr. Bubb-Clarke would be required to take a sick leave. Accompanied by a shop steward from the Union, Mr. Bubb-Clarke attended a meeting with Mr. Smale on February 18, 1996. At this meeting, Mr. Smale stated that there was nojob for Mr. Bubb-Clarke and that his Transportation seniority could not be transferred to Maintenance. Mr. Smale suggested that Mr. Bubb-Clarke apply for sick benefits and watch for job postings. Mr. Bubb-Clarke did not wish to take sick leave. He was capable ofperforming the job he occupied at that time and otherjobs at the TTC. Mr. Bubb-Clarke was not provided with an explanation of why the job he had been performing no longer existed. On that same date, February 18, 1996, Mr. Bubb-Clarke was sent home. Subsequent to this meeting, Mr. Bubb-Clarke kept in contact with John Colbarry, a member ofthe Union's Executive for Birchmount, who indicated that he was attempting to find work for Mr. Bubb-Clarke. According to Mr. Colbarry, the problem was that Mr. Bubb-Clarke had no Maintenance seniority and, therefore, could not bid for a Maintenance position. Mr. Bubb-Clarke received a Record of Employment approximately three weeks later, back-dated to February 18, 1996, indicating that he had been laid off for lack of work. After receiving his Record of Employment, Mr. Bubb-Clarke contacted John Casuti, the Vice President of the Union. Mr. Casuti told Mr. Bubb-Clarke that nothing could be done "due to the seniority regulations. That's just the way it is". (Note: Mr. Casuti has since become President of the Union and testified at the hearing.) r t