Dennis v. Family and Children's Services of London and Middlesex, 1990 CanLII 12499

Dennis v. Family and Children's Services of London and Middlesex

1990-05-17

Ontario Board of Inquiry

Shawna Dennis

Complainant

v.

Family and Children's Services of London and Middlesex

and

John Liston

Respondents

Date of Decision: May 17, 1990

Before: Ontario Board of Inquiry, Constance B. Backhouse

Appearances by: Kaye Joachim, Counsel for the Ontario Human Rights Commission

Laura Trachuk, Counsel for the Complainant

A. P. Tarasuk, Counsel for the Respondents

BOARD OF ARBITRATION — effect of prior decision on human rights complaint — CANADIAN CHARTER OF RIGHTS AND FREEDOMS — s. 11(b) right to be tried within a reasonable time — JURISDICTION — authority of board of inquiry to decide whether complaint falls within its jurisdiction — loss of jurisdiction due to extreme delay — prior arbitration decision — RES JUDICATA — prior avenues of appeal do not preclude tribunal from hearing complaint

Summary: This is a decision on preliminary objections raised by the respondents regarding the complaint of Shawna Dennis. Ms. Dennis alleges her employment was terminated by Family and Children's Services because she requested maternity leave, and that this amounts to discrimination on the basis of sex.

Family and Children's Services argues that the Board of Inquiry has no jurisdiction to hear this complaint because it is res judicata. When her employment was terminated, Shawna Dennis filed a grievance under the operative collective agreement as well as making a complaint to the Ontario Human Rights Commission. During the grievance proceedings the union argued that the Ontario Human Rights Code had been violated. The arbitrator ruled that the union did not establish that the grievor was dismissed in a manner that was arbitrary or discriminatory or for reasons of bad faith.

On the basis of this ruling, the employer argues that the matter of whether a violation of the Code occurred has already been determined, and the Board of Inquiry should not proceed because it would be addressing the same question.

The Board of Inquiry finds that there are differences between the issue that was heard by the arbitrator and the issue that is before the Board. The parties involved in the human rights complaint are not the same as those involved in the grievance because the Ontario Human Rights Commission was not involved in the arbitration. The presence of the Commission is fundamental to the proper operation of the human rights scheme because the Commission is charged with protecting the interests of the public in eliminating discriminatory behaviour.

The two systems - labour arbitration and human rights inquiries - are fundamentally different, the Board rules, and human rights inquiries ought not to be stayed because of prior arbitration rulings. The goal of labour arbitration is to maintain harmonious relations between private parties, employers and unions. But the goal of human rights proceedings is to promote the public interest in the elimination of discrimination.

For these reasons, the Board finds that the issue in the complaint is not res judicata.

The Board of Inquiry also rejects the respondents argument that the extensive delay between the filing of the complaint in 1985 and the appointment of a Board in 1990 caused a violation of section 11 of the Charter which guarantees the right to be tried within a reasonable time. The Board finds that section 11 of the Charter is not applicable in the present case because human rights proceedings are civil and compensatory in nature, not criminal and punitive.

In addition, the Board rejects the respondents argument that the delay breached section 7 of the Charter, which guarantees the right to life, liberty and security of the person. It would be a rare situation, if any, the Board rules, in which human rights proceedings affected security of the person.

The preliminary objections are denied.

Cases Cited

Commodore Business Machines Ltd. v. Olarte (1985), 1984 CanLII 2017 (ON HCJ), 14 D.L.R. (4th) 118, 1984 CanLII 5089 (ON HCJDC), 6 C.H.R.R. D/2833 (Ont. Div.Ct.): 22

Hyman v. Southam Murray Printing (No. 1) (1982), 1981 CanLII 4307 (ON HRT), 3 C.H.R.R. D/617 (Ont. Bd.Inq.): 26

MacBain v. Canada (Canadian Human Rights Comm.) (1984), 1984 CanLII 5379 (FC), 5 C.H.R.R. D/2214 (F.C.): 24

Ontario (Human Rights Comm.) and O'Malley v. Simpsons-Sears Ltd., 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536, 23 D.L.R. (4th) 321, 64 N.R. 161, 7 C.H.R.R. D/3102: 22

Shepherd v. Bama Artisans Inc. (1988), 1988 CanLII 8890 (ON HRT), 9 C.H.R.R. D/5049 (Ont. Bd.Inq.): 22

Legislation Cited

Canada

Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B of the Canada Act, 1982 (U.K.), 1982, c. 11

s. 7: 6, 23

s. 11(b): 6, 21

Ontario

Human Rights Code, 1981, S.O. 1981, c.53

s. 4(1): 2

s. 8: 2

s. 33: 17

Statutory Powers Procedure Act, R.S.O. 1980, c. 484, s. 23(1): 25

Authorities Cited

Spencer Bower, George, The Doctrine of Res Judicata, 2d ed. (London: Butterworths, 1969): 7

Interim Decision

1Shawna Dennis commenced employment as a clerk-typist with Family and Children's Services of London and Middlesex ("F & CS") on July 2, 1985. Her employment was terminated by John Liston, Executive Director of F & CS on September 25, 1985. Shawna Dennis was still within the probationary period, and her letter of termination did not specify the reason for dismissal.

2At the time of termination, Shawna Dennis was pregnant and had requested maternity leave. She believed that this was the basis for her dismissal. The day of termination, Shawna Dennis filed a grievance pursuant to the collective agreement between F & CS and the Ontario Public Service Employees Union ("OPSEU") alleging unjust termination. On September 26, 1985, the very next day, she filed a complaint with the Ontario Human Rights Commission, alleging discrimination on the basis of sex and violation of ss. 4(1) and 8 of the Ontario Human Rights Code, 1981.

3The grievance arbitration hearing commenced on May 8, 1986. Various preliminary jurisdictional issues arose. The employer argued that probationary employees had no access to the arbitration process. The union argued that termination was for arbitrary and unlawful reasons, and that this violated the Ontario Human Rights Code, 1981. The union sought to introduce evidence from the complaint process under that statute. The arbitration board reserved on the jurisdictional matters and proceeded to hear evidence on the merits.

4The arbitration hearing concluded on June 9, 1987, and an award was issued on September 28, 1987. The board of arbitration decided that the collective agreement did not permit probationary employees to grieve discharge on the issue of just cause. Neither did it permit probationary employees to grieve under the clause prohibiting discrimination. Nevertheless, the board of arbitration went on to consider whether the grievor was dismissed "in an arbitrary fashion, in a discriminatory manner and for reasons of bad faith." The conclusion was that the union had failed to establish any of these points. The grievance was subsequently dismissed.

5On October 19, 1987, the respondents forwarded the arbitration award to the Ontario Human Rights Commission, and requested that the Commission decide to halt its proceedings under s. 33 of the Ontario Human Rights Code, 1981. The Commission considered this request, and denied it on February 19, 1988. On January 16, 1989 the Commission advised that it had completed its investigation. On March 21, 1989 the Commission filed its formal report with the respondents, and on January 31, 1990 advised that it had decided to appoint a board of inquiry. On March 22, 1990, the Minister of Citizenship, Bob Wong, appointed me to chair this board of inquiry. A preliminary conference call on April 19, 1990 commenced the proceedings.

6At the outset of the first day of hearing, May 14, 1990, the respondents raised three preliminary arguments. The board of inquiry was requested to stay its proceedings on the basis of:

1. res judicata and issue estoppel;

2. violations of ss. 11(b) and 7 of the Charter [Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B of the Canada Act, 1982 (U.K.), 1982, c. 11];

3. abuse of process.

Res Judicata and Issue Estoppel

7George Spencer Bower's The Doctrine of Res Judicata sets forth the necessary constituents of res judicata and estoppel:

1. that the alleged judicial decision was what in law is deemed such;

2. that the particular judicial decision relied upon was in fact pronounced, as alleged;

3. that the judicial tribunal pronouncing the decision had competent jurisdiction in that behalf;

4. that the judicial decision was final;

5. that the judicial decision was, or involved, a determination of the same question as that sought to be controverted in the litigation in which the estoppel is raised;

6. that the parties to the judicial decision, or their privies, were the same persons as the parties to the proceeding in which the estoppel is raised, or their privies, or that the decision was conclusive in rem.

8At issue in this case were elements (3), (5), and (6). Counsel for the respondent, Mr. Tarasuk, argued that the board of arbitration had assumed jurisdiction over the very matter presently before this board of inquiry, with substantially the same parties present. According to Mr. Tarasuk, when the board of arbitration concluded that probationary employees had no right to grieve under the "just cause" and "no discrimination" clauses of the contract, that had not ended the grievance proceedings. Instead, the board had exercised its inherent jurisdiction to consider whether there had been "arbitrary," "discriminatory," or "bad faith" behavior on the part of the employer. If the dismissal had been for an "unlawful reason," the arbitrator would have inherent jurisdiction to order a reinstatement regardless of the probationary status of the employee. Thus, he argued, the board of arbitration had been a tribunal of competent jurisdiction.

9Mr. Tarasuk noted that at the urging of counsel for the complainant, and over the objections of his clients, documentation concerning Shawna Dennis's human rights complaint had been introduced as evidence at the arbitration hearing. He contended that counsel for the union had specifically requested the arbitration board to rule on the human rights issues under the Ontario Human Rights Code, 1981. This was not a matter of ruling on a "no discrimination" clause of the collective agreement, which may or may not have overlapped with the Code, but a request to consider the human rights complaint itself, within the context of the Ontario Human Rights Code, 1981. Through witness Terry West, Director of Human Resources and Administration at F & CS, Mr. Tarasuk established that counsel for the union had been given full opportunity before the board of arbitration to call any evidence she wished on the human rights matter. The arbitration award was therefore properly viewed as a final and complete determination of the human rights complaint, he argued.

10On the matter of identity of parties, Mr. Tarasuk conceded that the Human Rights Commission had not been party to the arbitration proceeding. However, he argued that the Commission had been fully aware of the arbitration proceeding, and had never attempted to join, or been prevented from doing so. Mr. Tarasuk noted that the present human rights complaint was not a complaint initiated by the Commission but "an individual complaint." He argued that the entry of the Commission at this point would "not really add anything" to the proceedings. According to Mr. Tarasuk, there was

nothing left, either in the public or individual interest, that hasn't been heard, or could have been heard, at the board of arbitration.

11Ms. Trachuk, counsel for the complainant, took a somewhat different position with respect to the arbitration proceeding. In her argument she neither admitted nor contradicted Mr. Tarasuk's assertions that the union lawyer had specifically asked the arbitrator to adjudicate the human rights complaint. However, Ms. Trachuk argued that the arbitration board had concluded that it had no jurisdiction under the collective agreement to hear the case. As a result, the portion of the decision which purported to deal with the merits of the case was merely obiter, designed to assist the parties in resolving their labour relations dispute. As such, it did not settle the matter currently before this board of inquiry.

12Furthermore, Ms. Trachuk argued that even if the board of arbitration had assumed jurisdiction, and ruled on the human rights issues, its decision would still not constitute res judicata. Private parties cannot contract out of human rights legislation, nor can collective agreements oust the jurisdiction of human rights tribunals. Ms. Trachuk argued that the systems of labour arbitration and human rights adjudication were fundamentally different, that the meaning and implications of concepts such as discrimination might even be interpreted differently within the two systems.

13Ms. Joachim, counsel for the Commission, also argued that the arbitration award did not pose a problem of res judicata. The parties were clearly not the same in the earlier proceeding, since neither the Commission nor John Liston had been named. The addition of the Commission, she argued, was not a mere formality, but a significant departure from the earlier process. Under the Code, the Commission was charged with carriage of the human rights hearing. Its mandate was to represent the public interest, and on occasion it might take positions divergent from those of the complainant. As for Mr. Tarasuk's suggestion that the Commission never sought to join the arbitration proceeding, she replied that it would have lacked standing to do so, and such action would have beyond its own mandate in any event. Finally, Ms. Joachim argued that for reasons of public policy, the doctrine of res judicata ought not to apply at all in situations such as this.

14In my opinion, this is a novel situation. The uncontradicted evidence of the respondents indicates that the complaint that is presently before this board was filed with a board of arbitration during a proceeding in 1986 and 1987. Apparently the counsel for the union asked the board of arbitration to rule on this complaint, pursuant to the Ontario Human Rights Code, 1981. Apparently there was full opportunity to call evidence and pursue arguments on the human rights issues. In this respect, this case differs from previous instances which involved arbitration rulings on "no discrimination" clauses, even where those clauses incorporated provisions of the Human Rights Code within their terms.

15Whether the board of arbitration went so far as to rule on the human rights complaint is much less clear. Although the arbitration board quoted extensively from the collective agreement in its decision, setting forth long extracts of the relevant provisions, it never once reiterated the specific provisions of the Human Rights Code. Despite detailed reference to previous arbitration jurisprudence, the award made reference to not a single human rights decision. In the determinative paragraph of the decision, the arbitration board concluded:

On all of the evidence adduced, the Union has failed to affirmatively establish any meaningful evidence of discrimination or bad faith or unlawful consideration on the part of the Employer in respect of the Grievor's termination as a probationary employee.

Here we see that the board has inextricably linked human rights findings with labour relations issues. The finding of no discrimination was categorically attributed to the grievor's status as a probationary employee. A close examination of the actual decision reveals that, in my view, the arbitration board did not intend to make any final disposition of the human rights complaint. Thus the same question was not determined, and this precondition for res judicata was not present.

16Furthermore, the parties to the two proceedings were not the same, and the absence of the Commission must be considered fatal to Mr. Tarasuk's argument on identity of parties. Contrary to Mr. Tarasuk's position that the Commission would not really add anything, the structure of the Human Rights Code suggests that the presence of the Commission is fundamental to the proper operation of the statutory scheme. The Commission is charged with advocating and protecting the interests of the public in eliminating discriminatory behavior. There may occasionally be a divergence of interest between the Commission and the individual complainants, and it is simply not possible to predetermine where there would be a mutuality of interests between the two.

17The Code implicitly recognizes that there may be alternate routes of proceedings which could supersede human rights litigation. Section 33 empowers the Commission to decide not to deal with a complaint if it is "one that could or should be more appropriately dealt with under an Act other than this Act." Where the Commission has concluded that a labour relations tribunal has fully canvassed the human rights issues and properly disposed of the dispute, it may indeed decide to abandon the human rights proceeding. But the Commission should be given a wide berth to make such discretionary decisions. It would only be in the most unusual of situations that a board of inquiry would decide to overrule the Commission in its exercise of this s. 33 power.

18In this case, then, neither the question nor the parties were the same in the two proceedings. The prerequisite requirements for res judicata were not present. However, I was also persuaded by the arguments of counsel for the Commission that even if all of the elements had been present, this doctrine ought not to be utilized to stay human rights proceedings on the basis of prior arbitration rulings. The systems differ dramatically in their function, purpose, and process. A ruling in one should not preclude or bar a proceeding in the other.

19The two systems of dispute resolution were designed for different purposes. The labour relations grievance process is designed for private parties, employers, and unions, to enable them to resolve differences over interpretation of their privately bargained labour agreements. The problems of individual employees are filtered through the medium of a trade union elected by the membership. The goal is to enable the parties to develop long-term, harmonious, ongoing relationships, and labour law expertise is bent to that task.

20Human rights proceedings are designed to promote the broad public interest in the elimination of discrimination. The document to be interpreted is a public statute. The complaints of individuals who have been harmed by discriminatory acts are investigated, screened, and then advocated by a publicly appointed and publicly financed Commission. As a matter of practice, human rights disputes rarely involve ongoing relationships. The goal is to compensate individuals or groups which have been treated unfairly, and the focus of human rights jurisprudence is upon developing sensitivities to the forms and manifestations of discrimination.

The Charter

21Counsel for the respondents complained of the extensive delay between the filing of the complaint on September 26, 1985, and the decision to appoint a board of inquiry on January 31, 1990. This, he argued, was contrary to the provisions of s. 11(b) of the Charter, which requires that any person charged with an offence has the right to be tried within a reasonable time.

22In my opinion, s. 11 of the Charter is not applicable to the present case, since this is a purely civil, compensatory proceeding: see Shepherd v. Bama Artisans Ltd. (1988), 1988 CanLII 8890 (ON HRT), 9 C.H.R.R. D/5049 (Ont. Bd. Inq.); Commodore Business Machines Ltd. and Minister of Labour for Ontario (1985), 1984 CanLII 2017 (ON HCJ), 14 D.L.R. (4th) 118, (sub nom. Commodore Business Machines Ltd. v. Olarte), 1984 CanLII 5089 (ON HCJDC), 6 C.H.R.R. D/2833 (Ont. Div. Ct.); Ontario (Human Rights Comm.) and O'Malley v. Simpsons-Sears Ltd., 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536, 7 C.H.R.R. D/3102.

23Counsel for the respondents also argued that the delay had breached s. 7 of the Charter, which guarantees the right to life, liberty, and security of the person, which are not to be deprived except in accordance with the principles of fundamental justice. Mr. Tarasuk led evidence through Terry West that it was part of the mandate of F & CS to work with children in need of protection, pregnant women who might need assistance with respect to adoption, and parents who sought assistance with child-rearing. Mr. West claimed that the human rights complaint of Shawna Dennis, alleging discrimination on the basis of her pregnancy, had damaged the reputation of the agency in the eyes of the public. The facts of the complaint were well known throughout the staff of the agency, and through media broadcasts to the public. Mr. West claimed that, given the widespread staff and community knowledge of the complaint, the delay of more than four years had caused further damage to reputation.

24In my opinion, this argument is not a strong one. It would be a rare situation, if any, in which human rights proceedings affected the "security of the person." As the Federal Court concluded in MacBain v. Canada (Canadian Human Rights Comm.)(1984), 1984 CanLII 5379 (FC), 5 C.H.R.R. D/2214 at D/2219:

I am not persuaded the right to "life, liberty and security of the person" includes interference with one's good name, reputation, or integrity.

Abuse of Process

25Counsel for the respondents argued that this board should stay its proceedings under the Statutory Powers Procedure Act, s. 23(1) because the unreasonable delay had constituted an abuse of process. Mr. Tarasuk pointed to the damage done to the respondents' reputations through the lengthy, unresolved years of investigation. He also noted that a material witness had left the employ of the respondents.

26In my opinion, this is not an appropriate occasion for an order to stay the proceedings, for the reasoning apparent in Hyman v. Southam Murray Printing (1982), 1981 CanLII 4307 (ON HRT), 3 C.H.R.R. D/617 (Ont. Bd. Inq.) at D/621. The delays involved in human rights proceedings are substantial, and most troubling to respondents, complainants, and the public. However, the appropriate remedy is not to refuse to hear such cases at all.

The respondents' three preliminary objections are denied.