Date: 20091217
Docket: T-1886-07
Citation: 2009 FC 1289
Ottawa, Ontario, December 17,
2009
PRESENT: The Honourable Madam Justice Simpson
BETWEEN:
LADISLAV KONECNY
Applicant
and
ONTARIO POWER
GENERATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] The self-represented
Applicant, Ladislav Konecny, seeks Judicial
Review of a decision of the Canadian Human Rights Commission (CHRC) dated September
28, 2007 (the Decision). The Applicant had complained that Ontario Power
Generation (OPG) discriminated against him on grounds of disability when it
investigated his conduct at the office and terminated his employment (the
Complaint). However, the CHRC decided, pursuant to paragraphs 41(1)(d) and (e)
of the Canadian
Human Rights Act, R.S.C.
1985, c. H-6
(the Act), not to conduct an investigation of his Complaint because it was out of time, made in bad faith
and frivolous.
[2] For the reasons that follow, I have
concluded that the Complaint was neither out of time nor made in bad faith.
However, I have found that it was frivolous in the sense that it was plain and
obvious that it could not succeed. Accordingly, this application for Judicial
Review has been dismissed.
THE FACTS
[3] The Applicant is a civil engineer
living in Toronto. He worked for
OPG and its predecessor, Ontario Hydro, from 1987 until his termination on July
26, 2002.
[4] In August 1999, the
Applicant was diagnosed with Multiple Sclerosis. He was prescribed treatments which
had negative side effects including flu-like symptoms. OPG therefore allowed
him to work a 4-day week. The
Applicant acknowledged that this schedule accommodated his disability.
[5] OPG treated the Applicant’s
accommodated day off as sick leave. The Applicant’s supervisor, Mr. Sean
Russell, worried that the resulting accumulated sick days could prejudice his
department’s chance to win a car in OPG’s anti-absenteeism contest.
Mr. Russell was therefore anxious to have the Applicant return to a 5-day
week.
[6] Mr. Russell was also concerned about the
quantity and quality of the Applicant’s work, and raised these concerns at the
Applicant’s performance review on November 18, 2001. Then, three days later, Mr. Russell provided a
harsher assessment of the Applicant’s work. In a conversation with a member of OPG’s
health service, he said that the Applicant was “functioning at below the level
of a student or trainee.”
[7] On March 21, 2002, a supervisor who
worked next door to the Applicant, sent Mr. Russell an e-mail (the
Supervisor’s Complaint) which stated, in part:
I haven’t been keeping records, but [the
Applicant] certainly seems to spend a LOT of time talking on the phone (today
at least, impression is that other days are not so different). Since it is a
foreign language, I assume it is not work related.
[8] Mr.
Russell forwarded the Supervisor’s Complaint to the office of the Vice
President - Nuclear Waste (the Vice President). An employee in that office informed
OPG’s Corporate Security department that the Applicant had been making
non-business related telephone calls with such frequency that it was “distracting
to others in the work group.” This allegation was made even though the
Supervisor’s Complaint had not suggested that anyone had been distracted.
[9] On
March 25, 2002, Mr. Russell was informed that the Applicant would be
transferred to a different department at OPG, where he would work under the
direction of a different supervisor. The transfer took effect on May 2, 2002.
[10]
On
April 10, 2002, the Vice President authorized OPG’s Corporate Security department
to investigate the Applicant’s telephone records for one month (the Preliminary
OPG Investigation). The outcome led to a broader investigation of the
Applicant’s telephone, e-mail and Internet use over a period of approximately
one year (the Final OPG Investigation). These investigations will be referred as
the OPG Investigations.
[11]
The
OPG Investigations revealed that the Applicant was engaged in personal commercial activities during
working hours. Between April 2001 and April 2002, the Applicant made or
received 1072 telephone calls and made several internet searches regarding his
business of importing exotic dancers from Europe. The Applicant also sent or received 155
e-mails related to that business and sent 212 e-mails concerning his hobby of
buying and selling dinky toys on e-Bay. A further 175 telephone calls were made
or received dealing with the operation of a health store.
[12]
The Applicant was
interviewed about this conduct on his return from vacation on July 22, 2002. He
was terminated on July 26, 2002.
[13]
The Applicant’s union,
the Society of Energy Professionals (SEP), grieved his termination and a SEP
lawyer represented the Applicant during a 28-day hearing before an Arbitrator.
The grievance was dismissed in a 33-page award dated May 24, 2005 (the Award).
[14]
The Applicant filed his
Complaint with the CHRC on May 23, 2006.
[15]
On June 4, 2007, the
CHRC issued an Investigation Report which recommended that the Complaint not be
investigated. After receiving submissions from counsel for both parties in response
to the Investigation Report, the Commission declined to investigate the Complaint
on September 28, 2007. It is that decision that is now under review.
THE
COMPLAINT
[16]
The basis of the
Complaint is that OPG was improperly motivated in that it investigated and
terminated the Applicant because it wanted to rid itself of someone who only
worked a 4-day week. This conduct, the Applicant says, amounted to discrimination
due to his disability.
[17]
The Applicant submits
that the CHRC should have investigated the Complaint because the Award did not
deal with his human rights issues “at all.” He said in oral submissions that the
Complaint identifies four matters which indicate improper motivation by OPG and
that those matters were not mentioned in the Award. They will be described
collectively as the Issues. The Issues are as follows:
a. Mr. Russell
made harsh and insulting statements about the Applicant’s performance behind
his back, 3 days after giving him a somewhat negative performance review (the
Performance Review Issue);
b. The Applicant
was not spoken to and warned about his conduct or afforded progressive
discipline before he was investigated and terminated (the Warning Issue);
c. The Vice
President’s office falsely advised Corporate Security that the Applicant was “distracting”
others (the Distraction Issue);
d. OPG kept a
“travelling file” on the Applicant (the Travelling File Issue).
THE ARBITRATOR’S AWARD
[18]
In
my opinion, in deciding to dismiss the Applicant’s grievance, the Arbitrator did
consider whether OPG had been improperly motivated when it investigated and
terminated the Applicant. However, she dealt with the subject in general terms
and did not specifically refer to three of the Issues. She stated, at page 29
of her Award:
I
have carefully reviewed the evidence of Mr. King, Mr. Giersjewski [sic] and Mr.
Russell in the context of the union’s argument that the employer was
inappropriately motivated in pursuing an investigation and in reaching the
decision to terminate the grievor’s employment. It relied on the impact of the
grievor’s accommodation on the work group, Mr. Russell’s desire to have the
grievor return to a five-day work week, and the lack of a progressive
disciplinary response in the context of conducting a surreptitious
investigation.
[19]
The
Arbitrator also said:
The grievor may well have felt pressure
to return to work full time. In a meeting between Mr. Russell, Mr. Dinner
(another supervisor), and Mr. Lo on January 9, 2001 those members of management
reviewed the grievor’s expertise, his then medical restrictions, and discussed
speaking to Human Resources regarding the use of sick time versus long term
disability. They learned that an application for part-time LTD would prevent
the grievor from accumulating sick leave so it was not pursued. Notes from that
meeting (Ex.242) reflect that they concluded that they needed to go slow, keep
the grievor challenged, and bring him into the group and get him involved. Mr.
Russell did check with Dr. House every six months to get an update regarding
the grievor’s accommodation. He accepted the information he received. The
employer was monitoring performance and was keeping its accommodation
information current; both of which an employer is readily entitled to do.
[20]
The
Award did specifically deal with some aspects of the Warning Issue. On page 30,
the Arbitrator noted that the supervisor in the neighbouring office made the
Supervisor’s Complaint, rather than speaking to the Applicant, because he was
not the Applicant’s supervisor. She also stated, on page 31, that it was proper
for OPG not to speak to the Applicant after the start of the Preliminary OPG
Investigation. She described the actions of Mr. Frank King, who was Mr.
Russell’s supervisor, in that regard and said:
The union queried why the employer had
simply not gone to the grievor and dealt with the matter directly, asserting
that the employer was more interested in building a case than having the
activity cease. Had the results of [the Preliminary OPG Investigation]
disclosed different information one cannot now predict how the employer may
have responded. As it turned out, it appeared to Mr. King that the grievor was
engaged in a number of private commercial activities using employer time and
assets. Mr. King was aware of the performance concerns identified to the
grievor and of the employer’s efforts to find him a more suitable assignment.
In light of that knowledge and given the clear prohibition in the Code [OPG’s
Code of Business Conduct], there was nothing inappropriate about the employer’s
decision to gather more information about the nature and scope of the grievor’s
activities.
[21]
As
well, at page 26, the Arbitrator discussed the union’s argument that OPG should
have afforded progressive discipline to the Applicant instead of terminating
him. The Arbitrator then said as follows at page 29:
The conduct is extremely serious. It goes
beyond the kind of activity referred to in the caselaw cited by the union. It
is a breach of the most fundamental employment obligation. Any employer is
entitled to expect that an employee understands that when you’re at work, being
paid by the employer, you are to perform work for that employer. One would
normally assume that a Code of Conduct would not be required in order for an
employee to appreciate this obligation. The time spent on personal matters goes
well beyond any standard of reasonable use. In addition the exotic dancer
business was engaged in without regard to the employer’s reputation.
[22]
On
page 33, the Arbitrator concluded as follows:
Having regard to all of the circumstances,
I decline to exercise my discretion. I am not persuaded that there is an
appropriate basis on which to set aside the employer’s decision to terminate
the grievor’s employment and substitute a lesser penalty.
[23]
However,
the Award did not address why Mr. Russell did not warn the Applicant before he
forwarded the Supervisor’s Complaint to the office of the Vice President.
[24]
Further,
the Award did not mention the Performance Review Issue, the Distraction Issue
or the Travelling File Issue even though evidence on those issues was before
the Arbitrator.
DISCUSSION
[25]
As
noted above, the CHRC declined to investigate the Complaint because it was out
of time, made in bad faith, and frivolous. I will address each of these findings
in turn and will evaluate them using reasonableness as the standard of review. See Khanna v. Canada (Attorney General), 2008 FC 576, 167 A.C.W.S. (3d) 761.
Was the Complaint Made Out
of Time?
[26]
Paragraph
41(1)(e) of the Act gives the CHRC discretion to refuse to deal with a complaint
that is based on acts or omissions which occur more than one year before the
complaint was received.
[27]
The
CHRC acknowledged that the Applicant was not aware of the Issues until evidence
was adduced during the arbitration hearing. The CHRC held, however, that the
Applicant should have filed the Complaint within a year of November 24, 2004,
which was the last day of the hearing.
[28]
In my opinion, that
conclusion was unreasonable. The Applicant could not have been expected to know
whether the matters which he alleged showed improper motivation had been
considered by the Arbitrator until he read her Award. Since the Award was
released on May 24, 2005 and the Complaint was filed within one year of that
date, it was filed in time.
Was the Complaint Made
in Bad Faith?
[29]
In
my view, it was not reasonable to conclude that the Complaint was made in bad
faith. The Applicant may have slightly overstated his case when he told the
CHRC that his human rights issues had not been dealt with “at all” by the
Arbitrator. However, as discussed above, the Award did not specifically mention
three of the four matters the Applicant says showed OPG’s improper motivation.
As well, the Award did not fully consider the Warning Issue. In these
circumstances, it was reasonable for the Applicant to advise the CHRC that
these matters had not been dealt with. This conduct did not amount to a bad
faith attempt to re-litigate matters that had already been decided.
Was the Complaint Frivolous?
[30]
The
CHRC concluded that the Complaint was frivolous because “based upon the
evidence, it appears to be plain and obvious that the complaint cannot
succeed.” I agree with this conclusion. In my view, none of the Issues
illustrate improper motivation. Accordingly, they are not capable of supporting
a successful human rights complaint.
[31]
I
have the following comments on the Issues.
[32]
Regarding
the Performance Review Issue, there is no question that Mr. Russell was
aggravated that an employee who was underperforming and missing deadlines was
only working four days a week. His harsh remarks to OPG’s health service support
this conclusion. However, the evidence also shows that Mr. Russell did not control
the OPG Investigations or OPG’s decision to terminate the Applicant. As the
Arbitrator found, after forwarding the Supervisor’s Complaint to the Vice
President’s office and taking up the matter with his own supervisor, Mr.
Russell “had no further involvement in the investigation.”
[33]
It
is also significant that by March 25, 2002, two weeks before the Preliminary
OPG Investigation was authorized, a decision had already been made to transfer
the Applicant to a different department where he would work under a different
supervisor. As well, it is noteworthy that the Supervisor’s Complaint, which led
to the OPG Investigations, was not made by Mr. Russell.
[34]
For
all these reasons, I see no basis for concluding that Mr. Russell’s criticism
of the Applicant behind his back suggests that OPG was motivated to fire the
Applicant rather than to accommodate his disability.
[35]
Regarding
the Warning Issue, in light of the volume of telephone calls and e-mails that
the Applicant made on non-OPG business, OPG had good cause to terminate him. The
Arbitrator found that, in the egregious circumstances of this case, no progressive
discipline was required.
[36]
However,
the Applicant says that Mr. Russell displayed improper motivation when,
having received the Supervisor’s Complaint, he sent it to the Vice President
without first giving him a warning. In my view, this submission cannot succeed
because the evidence shows that Mr. Russell was unsure of how to deal with
the Supervisor’s Complaint and that he sent it to the Vice President seeking
procedural advice. This conduct does not suggest improper motivation. It is
reasonable to conclude that Mr. Russell would be unsure about the procedure
for dealing with a complaint about “a LOT” of personal calls.
[37]
Regarding
the Distraction Issue, the Supervisor’s Complaint demonstrates that the OPG Investigations
were launched because the Applicant had been overheard making “a LOT” of non-OPG-related
telephone calls. This observation provided OPG with ample justification to
begin the OPG Investigations. Against this background, the fact that someone in
the Vice President’s office incorrectly described the Supervisor’s Complaint as
having been about distracting behaviour as well as personal calls is not
material.
[38]
Finally,
regarding the Travelling File issue, there is no evidence about when or why this
file was created, who created it, what it contained, or how it may have been
used. Given the lack of any evidence suggesting an improper motive, it was
reasonable for the CHRC to conclude that in all the circumstances the mere existence
of the travelling file did not justify an investigation.
CONCLUSION
[39]
The
CHRC erred in concluding that the Complaint was out of time and made in bad
faith. However, it did not err in finding that the Complaint was frivolous. Accordingly,
this application for Judicial Review will be dismissed.
[40]
In
view of the divided success, there will be no order as to costs.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that, for the reasons given
above, this application for judicial review is hereby dismissed.
Sandra J. Simpson
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