Snow v. Honda of Canada Manufacturing
HR-1240-07
2007-12-21
2007 HRTO 45
Ontario Human Rights Tribunal
CHRR Doc. 07-713
Dwight Snow Complainant
and
Ontario Human Rights Commission Commission
v.
Honda of Canada Manufacturing, Sandy Matheson, Doug Korin and Jamie McCutcheon Respondents
Before: Human Rights Tribunal of Ontario, Kaye Joachim
Appearances by:
Cathy Pike, Counsel for the Commission
Jayson A. Rider, Counsel for the Respondents
JURISDICTION — concurrent jurisdiction — exclusive jurisdiction — ADMINISTRATIVE TRIBUNALS — court of competent jurisdiction to rule on contravention of human rights legislation — HUMAN RIGHTS TRIBUNALS — authority to review actions of another administrative tribunal — HUMAN RIGHTS — nature and purpose of human rights legislation
RES JUDICATA AND ESTOPPEL — prior workplace tribunal proceeding — prior proceeding under other legislation — test for res judicata and estoppel — parties to proceedings and complaints must both be the same — definition of estoppel — PROCEDURE — adjudicating issue dealt with in prior proceeding as abuse of process — complaint filed in multiple forums as abuse of process — adjournment to seek judicial review
Summary: The Ontario Human Rights Tribunal issued an interim decision refusing a request from Honda of Canada Manufacturing ("Honda") to dismiss Douglas Snow's complaint without hearing. The Tribunal also denied Honda's request for a stay of the Tribunal's proceedings until it can seek judicial review of the Commission's decision to refer the complaint for hearing.
Mr. Snow alleged that he was discriminated against on the ground of disability when Honda failed to accommodate him in 2003 and terminated his employment in 2004. He also alleged that he was harassed by other employees of Honda who pressured him to perform work beyond his restrictions, questioned whether he had a genuine disability, and denied him training opportunities.
Honda claimed that: (1) the Tribunal does not have jurisdiction to review a decision of the Workplace Safety and Insurance Board ("WSIB"); (2) Mr. Snow is barred by the Workplace Safety and Insurance Act ("WSIA") from initiating a human rights complaint; (3) the Tribunal is barred from hearing this complaint by issue estoppel; and (4) the allegations of harassment do not raise a prima facie case of discrimination.
Mr. Snow started working with Honda in 1991 at a large car manufacturing plant in Alliston, Ontario. He developed work-related arm and hand pain in 1999, which was worsened by an injury to his neck in a car accident in 2000. He was accommodated by time off and modified duties until March 2003. At that time WSIB advised Honda that Mr. Snow had severe, permanent physical restrictions that would require accommodation. Mr. Snow was referred by WSIB for retraining as a Production/Inventory Control Clerk. Honda terminated his employment shortly after. Honda claimed that the WSIB decision to refer Mr. Snow for retraining was an implicit determination that there was no suitable work for him at Honda.
Because the WSIB has the authority to determine when injured workers are entitled to benefits, are fit to return to work, or require retraining, Honda argued that the WSIB has exclusive jurisdiction to determine all matters relating to the accommodation of injured workers. Essentially, Honda's position was that no worker who is entitled to receive WSIA benefits can file a complaint regarding discrimination based on disability.
The Tribunal rejected this argument. The WSIA and the Human Rights Code are different. The Code has primacy and addresses discrimination. It provides remedies for a failure to accommodate that are not available under the WSIA. The Tribunal accepted that the WSIB has exclusive jurisdiction to determine issues under the WSIA. However, the Tribunal has clear jurisdiction to deal with issues of discrimination and accommodation relating to the ground of disability.
Honda asserted that if the Tribunal hears Mr. Snow's complaint, it would be reviewing a decision of the WSIB, which it has no authority to do. The Tribunal determined that it would not be reviewing a decision of the WSIB, in part, because the WSIB did not issue a decision. Honda claims that the WSIB made an implicit determination that no accommodation was possible at Honda, but there was no written decision or reasons given for the referral of Mr. Snow for retraining. The Tribunal's hearing of Mr. Snow's complaint would determine whether discrimination occurred.
Should the Tribunal be estopped from hearing Mr. Snow's complaint? To determine whether the Tribunal was barred by the doctrine of issue estoppel, certain factors must be assessed: was the same issue dealt with by the WSIB; were the parties the same; was a final decision rendered? The Tribunal found that none of the necessary elements of issue estoppel were present. The issue before the Tribunal is whether Honda could have accommodated Mr. Snow after 2003 and whether the 2004 termination was discriminatory. The parties are not the same, because the Commission was not a party to any decisions made by WSIB; and no decision, final or otherwise, was rendered by the WSIB.
The Tribunal determined that it cannot review the Commission's decision to refer the allegations of harassment, which is what Honda, in effect, has requested. It is the Tribunal's function to hear and decide whether the allegations have merit.
Finally, the Tribunal denied Honda's request for a stay of proceedings until it can seek judicial review of the Commission's decision to refer the complaint for hearing. The Tribunal found that Honda did not seek judicial review in a timely fashion. Dates for the Tribunal hearing have been set, and the balance of convenience does not favour granting a stay. The motions were dismissed.
CASES CITED
Anonuevo v. General Motors of Canada Ltd. (No. 3) (1998), 1998 CanLII 29850 (ON HRT), 32 C.H.R.R. D/322 (Ont. Bd.Inq.): 54
Axton v. B.C. Transit (1996), 1996 CanLII 20075 (BC HRT), 28 C.H.R.R. D/337, [1996] B.C.C.H.R.D. No. 25 (QL): 49
Bhasin v. Home Depot (Canada) Inc., [2007] O.J. No. 1929 (QL): 13, 28
Blencoe v. British Columbia (Human Rights Comm.), 2000 SCC 44, [2000] 2 S.C.R. 307, 38 C.H.R.R. D/153, [2000] S.C.J. No. 43 (QL), 2000 SCC 44: 53
Brine v. Canada (Human Rights Comm.) (2003), CHRR Doc. 03-128, 2003 CHRT 17: 54
British Columbia v. Tozer (1998), 1998 CanLII 1293 (BC SC), 33 C.H.R.R. D/327 (B.C.S.C.): 54
Canada (Human Rights Comm.) v. Canada Post Corp. (2002), 2002 CanLII 61852 (CHRT), 45 C.H.R.R. D/410 (C.H.R.T.): 36, 54, 56
Canada (Human Rights Comm.) v. Canada Post Corp. (2004), 49 C.H.R.R. D/172, 2004 FC 81: 35, 56
Canada (Human Rights Comm.) v. Canada Post Corp.(2004), CHRR Doc. 04-654, 2004 FCA 363: 36, 56
Chan v. Ontario Power Generation Inc. (2000), 2000 CanLII 20860 (ON HRT), 37 C.H.R.R. D/351 (Ont. Bd.Inq.): 35, 54
Chow (Re) (1999), 1999 ABQB 1026, 37 C.H.R.R. D/442 (Alta. Q.B.): 54
Cote v. Canadian Forest Products Ltd. (2001), CHRR Doc. 01-045, [2001] B.C.H.R.T.D. No. 13 (QL), 2001 BCHRT 13: 49
Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, [2001] 2 S.C.R. 460: 44, 46
Ford Motor Co. of Canadav. Ontario (Human Rights Comm.) (2001), 2001 CanLII 21234 (ON CA), 209 D.L.R (4th) 465, 41 C.H.R.R. D/349 (Ont. C.A.): 14
Insurance Corp. of British Columbia v. Heerspink, 1982 CanLII 27 (SCC), [1982] 2 S.C.R. 145, 3 C.H.R.R. D/1163: 19
Johnson v. East York Board of Education (No. 2) (1991), 1991 CanLII 13131 (ON HRT), 17 C.H.R.R. D/175 (Ont. Bd.Inq.): 54
Macaulay v. Textron Automotive Co. (Oct. 4, 2000), Dec. No. 307/00 (Bd.Arb.): 29
O'Connor v. Canadian National Railway Co. (2006), CHRR Doc. 06-241, 2006 CHRT 5: 35, 38, 40, 42, 44, 54
Ontario (Human Rights Comm.) v. Dofasco Inc. (No. 3) (2001), 2001 CanLII 26216 (ON HRT), 39 C.H.R.R. D/500 (Ont. Bd.Inq.): 35, 54, 64
Ontario (Human Rights Comm.) v. Dofasco Inc. (No. 4) (2004), 49 C.H.R.R. D/277, 2004 HRTO 5: 54
Ontario (Ministry of Correctional Services) v. Ontario (Human Rights Comm.) (No. 12) (2005), CHRR Doc. 05-699, 2005 HRTO 48: 71
Parry Sound (Dist.) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42, [2003] 2 S.C.R. 157, 47 C.H.R.R. D/182, 2003 SCC 42: 37
Patel v. Minto Developments Inc. (No. 2) (1996), 1996 CanLII 20055 (ON HRT), 26 C.H.R.R. D/444 (Ont. Bd.Inq.): 54
Pritchard v. Ontario (Human Rights Comm.) (No. 1) (1999), 1999 CanLII 15058 (ON SCDC), 35 C.H.R.R. D/39 (Ont. Div.Ct.): 54
Québec (Procureur général) v. Québec (Comm. des droits de la personne et des droits de la jeunesse) et Morin, 2004 SCC 39, [2004] 2 S.C.R. 185, 49 C.H.R.R. D/413, [2004] S.C.J. No. 354 (QL), 2004 SCC 39: 14
Rasanen v. Rosemount Instruments Ltd. (1994), 1994 CanLII 608 (ON CA), 112 D.L.R. (4th) 683 (Ont. C.A.): 43
Seneca College of Applied Arts and Technology v. Bhadauria, 1981 CanLII 29 (SCC), [1981] 2 S.C.R. 181, 2 C.H.R.R. D/468: 29
Sewak v. KCL West Holdings Inc. (No. 2) (2004), CHRR Doc. 04-039, 2004 BCHRT 16: 54
Toronto (City) v. C.U.P.E., Local 79, [2003] 3 S.C.R. 77, 2003 SCC 63: 47, 55
Tranchemontagne v. Ontario (Dir., Disability Support Program) 2006 SCC 14, [2006] 1 S.C.R. 513, 56 C.H.R.R. D/1, 2006 SCC 14: 20, 22
Tweten v. RTL Robinson Enterprises Ltd. (No. 1) (2004), 50 C.H.R.R. D/147, 2004 CHRT 8: 50, 54
Weber v. Ontario Hydro, 1995 CanLII 108 (SCC), [1995] 2 S.C.R. 929: 14
West End Construction Ltd. v. Ontario (Ministry of Labour) (1989), 1989 CanLII 4088 (ON CA), 10 C.H.R.R. D/6491 (Ont. C.A.): 29
LEGISLATION CITED
Ontario
Human Rights Code, R.S.O. 1990, c. H.19
s. 5(1): 5
s. 10(1)(e): 21
s. 17: 21
s. 34(1)(a): 31, 34
s. 47(2): 20, 22
Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, s. 23(1): 52
Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16
s. 1: 18
s. 26: 27, 32
s. 27(1): 27
s. 28: 27, 32
s. 40(1): 18
s. 41: 11, 18
s. 41(4): 18
s. 41(5): 18
s. 41(6): 18
s. 41(11): 18
s. 42: 18
s. 57: 63
s. 59(6): 62
s. 118: 12, 15, 22
s. 123: 12
s. 150(1): 62
s. 158(1): 62
s. 180: 62
INTRODUCTION
1Douglas Snow alleges that his employer, Honda of Canada Manufacturing ("Honda"), discriminated against him because of his disability by failing to accommodate his disability-related needs and terminating his employment. Mr. Snow also alleges that Sandy Matheson, Doug Korin and Jamie McCutcheon, employees of Honda, discriminated against him because of disability by pressuring him to do work beyond his limitations; making disparaging remarks and questioning the genuineness of his disability and his efforts to return to work; and denying him training opportunities which would have facilitated his return to work.
2Honda and the three employees (the "respondents") ask the Tribunal to dismiss Mr. Snow's complaint without a hearing because Mr. Snow raised substantially the same issues under the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16 ("WSIA") and it would be unfair to permit him to re-litigate these issues again. Specifically, the respondents make the following submissions:
· The Human Rights Tribunal of Ontario (the "Tribunal") does not have the jurisdiction to hear Ms. Snow's complaint because the Workplace Safety and Insurance Board ("WSIB") has exclusive jurisdiction over the issues raised in his complaint (return to work and accommodation);
· The Tribunal does not [have] the jurisdiction to review a decision of the WSIB;
· Mr. Snow is barred by the provisions of the WSIA from initiating this action;
· The Tribunal is barred from considering this matter by virtue of the application of issue estoppel or, alternatively, abuse of process; and
· The harassment allegations in the complaint do not raise a prima facie case of discrimination.
3In the alternative, the respondents seek a stay of the Tribunal's proceedings to judicially review the Commission's decision to refer Mr. Snow's complaint to the Tribunal.
4In an unreported interim decision dated November 29, 2007, I denied the respondents' request to dismiss Mr. Snow's complaint without a hearing and their request for a stay of proceedings. These are the reasons for my interim decision.
BACKGROUND
5Mr. Snow filed a complaint with the Commission on May 15, 2003, alleging that the respondents had harassed and discriminated against him in employment on the basis of disability contrary to s. 5(1) of the Human Rights Code, R.S.O. 1990, c. H.19 (the "Code"). The complaint was referred to the Tribunal by letter from the Commission on February 27, 2007. Following the pre-hearing conference call, the parties made written submissions on the above issues.
6I did not hear any evidence for the purpose of this motion. The following recitation of facts is based on the pleadings because some narrative is required to understand this decision.
7Honda makes cars at a large plant in Alliston, Ontario. Mr. Snow started work with Honda in January 1999 as a "production associate". Mr. Snow developed work-related arm and hand pain in late 1999. He suffered a car accident in January 2000, injuring his neck. He was accommodated by time off and modified duties until March 2003. At that time, the WSIB advised Honda that Mr. Snow had severe, permanent physical restrictions that required accommodation. Honda alleges that no suitable work was available that would meet Mr. Snow's restrictions.
8In March 2003, Honda met with Mr. Snow and a WSIB mediator. Following that meeting, Mr. Snow was referred to a WSIB Labour Market Re-entry ("LMR") program to retrain him as a Production/Inventory Control Clerk. The respondents argue that by referring Mr. Snow for retraining, the WSIB was making an implicit determination that Honda could not provide Mr. Snow with suitable work that would accommodate his disability-related needs. I note, however, that the WSIB did not make a decision or determination finding that Honda had satisfied its duty to accommodate Mr. Snow.
9In May 2003, Mr. Snow filed this complaint with the Commission, alleging that there was modified work at Honda that he could do after March 2003. Mr. Snow seeks reinstatement, compensation for lost wages, general damages, and damages for mental anguish. The Commission further seeks public interest remedies in the form of training for Honda staff and the development of a comprehensive written policy on accommodation and harassment because of disability in the workplace.
10In June 2004, Honda terminated Mr. Snow's employment shortly after the WSIB advised that Mr. Snow's LMR program had been terminated for non-co-operation. The Commission asserts that the dismissal is a continuation of the discrimination alleged in the original complaint.
ANALYSIS OF ISSUES RAISED BY THE RESPONDENTS
Is the Tribunal's jurisdiction ousted because of the exclusive jurisdiction of the WSIB?
11Honda submits that the Tribunal is without jurisdiction to hear this matter by virtue of the exclusive jurisdiction of the WSIB to determine all matters arising under the WSIA. Since Mr. Snow's complaint relates to an alleged failure to accommodate a workplace injury and the subsequent return-to-work arrangements, Honda submits that the subject matter of the complaint is within the exclusive jurisdiction of the WSIB by operation of s. 118 of the WSIA. Honda submits that s. 118 provides the WSIB with exclusive jurisdiction to determine whether an employer has met its obligation, under s. 41 of the WSIA, to accommodate a worker short of undue hardship. The only avenue of appeal is to the Workplace Safety and Insurance Appeals Tribunal ("WSIAT").
12The relevant WSIA provisions are as follows:
118(1) The Board has exclusive jurisdiction to examine, hear and decide all matters and questions arising under this Act, except where this Act provides otherwise.
118(2) Without limiting the generality of subsection (1), the Board has exclusive jurisdiction to determine the following matters:
Whether a person is co-operating in reaching his or her maximum medical recovery, in returning to work or in the preparation and implementation of a labour market re-entry plan.
Whether an employer has fulfilled his, her or its obligations under the insurance plan to return a worker to work or re-employ the worker.
Whether a labour market re-entry plan for a person is to be prepared and implemented.
118(3) An action or decision of the Board under this Act is final and is not open to question or review in a court.
123(1) The Appeals Tribunal has exclusive jurisdiction to hear and decide,
(a) all appeals from final decisions of the Board with respect to entitlement to health care, return to work, labour market re-entry and entitlement to other benefits under the insurance plan;
(c) such other matters as are assigned to the Appeals Tribunal under this Act.
(3) On an appeal, the Appeals Tribunal may confirm, vary or reverse the decision of the Board.
(4) An action or decision of the Appeals Tribunal under this Act is final and is not open to question or review in a court.
13Honda relies on the decision of the Superior Court in Bhasin v. Home Depot (Canada) Inc., [2007] O.J. No. 1929 (QL). Mr. Bhasin filed a civil action against his employer for wrongful dismissal and alleged that his employer failed to accommodate his workplace injury. The Court ruled that the WSIA contains a complete code of rights and remedies for employees relating to the areas of returning to work, duty to accommodate and labour market re-entry, and consequently those claims are not within the jurisdiction of the Court.
14The Bhasin case is distinguishable on the basis that the Court was deciding whether the disputed allegations could found a court action. The Court did not determine the situation of competing statutory agencies. Similarly, when the Supreme Court of Canada held that the Labour Relations Act contemplated that labour arbitrators would have exclusive jurisdiction over disputes arising out of collective agreements (Weber v. Ontario Hydro, 1995 CanLII 108 (SCC), [1995] 2 S.C.R. 929), it was deciding that issue vis-à-vis the Court's jurisdiction. Cases subsequent to Weber have consistently held that the arbitrator's apparently exclusive jurisdiction does not oust the jurisdiction of human rights Commissions or Tribunals who may share overlapping or concurrent jurisdiction: Ford Motor Co. of Canada v. Ontario (Human Rights Commission) (2001), 2001 CanLII 21234 (ON CA), 209 D.L.R (4th) 465, 41 C.H.R.R. D/349 at § 58, 59 (Ont. C.A.); Québec (Commission des droits de la personne et des droits de la jeunesse) v. Québec (Attorney General), [2004] S.C.J. No. 354 (QL), 2004 SCC 39 [ 49 C.H.R.R. D/413] at § 11 (" Morin").
15In this case, it appears that both the WSIB and the Tribunal may have the authority to make a determination under their constitutent statutes as to whether Honda has appropriately fulfilled a duty to accommodate the disability-related needs of Mr. Snow. The question before me is whether the Tribunal's jurisdiction is ousted because of s. 118 of the WSIA.
16The implication of Honda's argument is this. If Honda is correct, then a worker entitled to benefits under the WSIA would not be able to file a human rights complaint alleging that the employer failed to accommodate a return to work because the WSIB (and on appeal the WSIAT) would have exclusive jurisdiction to adjudicate those issues. Taken to its logical conclusion, Honda's argument would mean that Honda does not need to demonstrate that the WSIB has even made a determination on the issues of return to work or accommodation. In fact, in the present case, there has been no WSIB decision making a determination on these issues. The mere fact that the worker is entitled to benefits would give the WSIB exclusive jurisdiction to determine those issues.
17It is useful to review briefly the purposes of the WSIA and the Code before addressing Honda's argument.
18One of the purposes of the WSIA is "to facilitate the return to work and recovery of workers who sustain personal injury arising out of and in the course of employment. . . " (s. 1). Employers have an obligation to co-operate in the early and safe return to work of the worker by, among other things, "attempting to provide suitable employment that is available and consistent with the worker's functional abilities and that, when possible, restores the worker's pre-injury earnings" (s. 40(1)). The employer is obliged to re-employ injured workers (s. 41) in their pre-injury employment, or if the worker is not able to perform the essential duties of the pre-injury employment, in alternative available suitable employment (s. 41(4) and (5)). In determining whether the worker is medically able to perform pre-injury or suitable employment, the employer "shall accommodate the work or the workplace for the worker to the extent that the accommodation does not cause the employer undue hardship" (s. 41(6)). Upon the request of either the worker or the employer, the board shall determine whether the employer has fulfilled its obligations under s. 41 (s. 41(11)). Alternatively, if a worker is unable to return to the pre-injury employment or to suitable alternative employment because of the injury, the Board shall develop a labour market re-entry plan, in consultation with the worker, the employer and the worker's health practitioners, if necessary (s. 42).
19The Code is a quasi-constitutional statute and it is intended that it supersede all other statutes when conflict arises. As stated by the Supreme Court of Canada in Insurance Corporation of British Columbia v. Heerspink, 1982 CanLII 27 (SCC), [1982] 2 S.C.R. 145 at 157—58, 3 C.H.R.R. D/1163 (at § 10302):
When the subject matter of a law is said to be the comprehensive statement of the "human rights" of the people living in that jurisdiction, then there is no doubt in my mind that the people of that jurisdiction have through their legislature clearly indicated that they consider that law, and the values it endeavours to buttress and protect, are, save their constitutional laws, more important than all others. Therefore, short of that legislature speaking to the contrary in express and unequivocal language in the Code or in some other enactment, it is intended that the Code supersede all other laws when conflict arises.
20The primacy of the Code is also enshrined in the legislation itself in s. 47(2). The Supreme Court of Canada recently confirmed the importance of this provision in finding that two provincial adjudicative bodies, the Human Rights Commission and the Social Benefits Tribunal, had concurrent jurisdiction to make a determination on a human rights issue. In Tranchemontagne v. Ontario (Director, Disability Support Program), 2006 SCC 14, [2006] 1 S.C.R. 513 [ 56 C.H.R.R. D/1] at § 38, Mr. Justice Bastarache, for the majority, wrote with reference to s. 47(2):
. . . This section [s.47(2)] provides not simply that the Code takes primacy over other legislative enactments, but that this primacy applies "unless the [other] Act or regulation specifically provides that it is to apply despite this Act [the Code]". Thus the legislature put its mind to conflicts between the Code and other enactments, declared that the Code will prevail as a general rule, and also developed instructions for how it is to avoid application of Code primacy.
21The Code prohibits discrimination in employment against persons with disabilities. "Disability" is defined in s. 10(1)(e) of the Code to include "an injury or disability for which benefits were claimed or received under the insurance plan established under the WSIA, 1997". Thus, the legislature specifically intended that injured workers who are entitled to benefits under WSIA ("injured workers") may also bring complaints of discrimination under the Code. In complaints under the Code, injured workers may allege harassment or discrimination or reprisal, which are issues not contemplated by the WSIA. In addition, an injured worker may allege that an employer failed to permit him or her to return to work or failed to make suitable efforts to accommodate. Accordingly, the Code clearly contemplates that the Tribunal (and the Commission) has jurisdiction to hear and consider issues relating to the accommodation of injured workers. Section 17 of the Code specifically addresses the test to be applied in assessing whether an employer made sufficient efforts to accommodate a person with a disability (and an injured worker falls into that group).
22The remedies available under the Code are different from and considerably more extensive than those available under the WSIA. Remedies for discrimination include reinstatement, damages for all lost wages and benefits, general damages for injury to dignity and breach of the Code, and damages for mental anguish, as well as pre- and post-judgment interest. Since the Code has specifically included injured workers with claims under the WSIA as a group falling under the definition of disability in the Code, I do not accept that the legislature intended to deny the remedial provisions of the Code to this subset of persons with disabilities. Moreover, pursuant to s. 47(2) of the Code, if the legislature had intended, by enacting s. 118 of the WSIA, to remove the right of injured workers to claim their rights under the Code, and to restrict them to the remedies under the WSIA, the legislature would have had to include a specific provision to that effect: Tranchemontagne, supra, at § 38.
23I find that, considering the nature and purpose of the Code and the WSIA, the Tribunal's jurisdiction to hear Mr. Snow's complaint is not ousted simply because the WSIB also has jurisdiction to determine whether Honda properly accommodated Mr. Snow within the meaning of the WSIA. I accept that the WSIB (and on appeal, WSIAT) has exclusive jurisdiction to interpret and apply the WSIA. In interpreting and applying the WSIA, an issue may arise as to whether a worker can be accommodated at the employer's workplace. The WSIB or WSIAT may make a determination as to whether an employer is able to accommodate an injured worker without causing the employer undue hardship. In so doing, they are not interpreting and applying the Code, but rather, their own constituent statute. Whether the WSIB determination of that issue should give rise to an issue estoppel or foreclose re-litigation of that issue as an abuse of process is a legitimate question, which is discussed below.
Will the Tribunal be reviewing a decision of the WSIB?
24Honda asserts that, in hearing Mr. Snow's complaint, the Tribunal will be reviewing the WSIB determination that there was no suitable permanent accommodation for Mr. Snow at Honda, and the WSIB determination that Mr. Snow failed to co-operate in the LMR program.
25I disagree. In this case, the Tribunal will not be reviewing any decision of the WSIB; in fact, the WSIB has not issued a decision. The Tribunal will only be determining whether discrimination on the basis of disability occurred, which is squarely within the mandate of the Tribunal.
26In my view, if there is the potential for the Tribunal to rehear and determine issues that have been fully heard and determined by the WSIB or WSIAT, then that issue should be dealt with as a potential abuse of process.
Does the WSIA bar Mr. Snow's complaint?
27Honda submits that Mr. Snow is barred by statute from filing a complaint with the Human Rights Commission by virtue of ss. 26 and 28 of the WSIA which bar statutory or other "actions".
26(1) No action lies to obtain benefits under the insurance plan, but all claims for benefits shall be heard and determined by the Board.
(2) Entitlement to benefits under the insurance plan is in lieu of all rights of action (statutory or otherwise) that a worker, a worker's survivor or a worker's spouse, child or dependant has or may have against the worker's employer or an executive officer of the employer for or by reason of an accident happening to the worker or an occupational disease contracted by the worker while in the employment of the employer
27(1) Sections 28 to 31 apply with respect to a worker who sustains an injury or a disease that entitles him or her to benefits under the insurance. . .
28(1) A worker employed by a Schedule 1 employer, the worker's survivors and a Schedule 1 employer are not entitled to commence an action against the following persons in respect of the worker's injury or disease:
- Any Schedule 1 employer.
A director, executive officer or worker employed by any Schedule 1 employer. [Emphasis added.]
28Honda submits that ss. 26 and 28 prohibit all types of "actions" arising out [of] a workplace injury, including the statutory right of action under the Code: Bhasin, supra. Taken to its logical conclusion, Honda's argument would mean that even a complaint alleging harassment for a workplace injury would be barred, as it would be "for or by reason of accident" (s. 26) or "in respect of the worker's injury" (s. 28).
29The Commission argues that human rights proceedings are not "actions" within the meaning of the WSIA: West End Construction Ltd. v. Ontario (Ministry of Labour) (1989), 1989 CanLII 4088 (ON CA), 10 C.H.R.R. D/6491 at § 45734 (Ont. C.A.) and Seneca College v. Bhadauria (1981), 1981 CanLII 29 (SCC), 2 C.H.R.R. D/468 (S.C.C.). The Commission also argues that ss. 26 and 28 do not bar administrative proceedings: Macaulay v. Textron Automotive Co., Decision No. 307/00, October 4, 2000, at § 42—53.
30This argument raises similar policy issues to those discussed above in the context of Honda's argument about exclusive jurisdiction, although the implications of Honda's argument are even greater in the context of the instant argument. Honda asserts that an injured worker may not file any complaint of discrimination relating to the work injury. This is an even broader claim than Honda's argument about exclusive jurisdiction, which would only seek to oust the Tribunal's jurisdiction if issues of return to work and accommodation are raised.
31I find that the Tribunal has no authority to bar a complainant from initiating a complaint under the Code. The Commission, on the other hand, has exercised its authority under s. 34(1)(a) to determine if it should "not deal" with this complaint because it "could or should be more appropriately dealt with under" another statute. As discussed below, Honda is currently challenging the Commission's decision to deal with this complaint, and refer it to the Tribunal, in its application to the Divisional Court for judicial review. That is the appropriate forum to have raised this issue.
32Further, I find that s. 26 of the WSIA prohibits actions "for or by reason of an accident happening to the worker". A complaint under the Code is not "for or by reason of an accident happening to the worker". Mr. Snow's complaint is for or by reason of alleged discrimination because of disability. Similarly, s. 28 bars actions "in respect of the worker's injury". Mr. Snow's complaint is not in respect of his workplace injury, but is in respect of the alleged discrimination he faced because of disability. I find that Mr. Snow is not barred from maintaining his complaint before the Tribunal.
Issue Estoppel & Abuse of Process
Jurisdiction to consider whether issue estoppel or abuse of process applies
33Honda submits that the Tribunal is barred from considering Mr. Snow's complaint by virtue of the doctrine of issue estoppel or abuse of process. Honda asserts that the WSIB has determined that, as of March 2003, Honda could not accommodate Mr. Snow in his pre-injury position or in any suitable alternative position, without undue hardship. The WSIB has also determined that Mr. Snow was not co-operating with the LMR program. These determinations, Honda asserts, are final and cannot be re-litigated before the Tribunal.
34The Commission submits that the Commission has already decided this issue and the Tribunal cannot review the Commission's exercise of discretion under s. 34(1)(a). As discussed above, Honda had asked the Commission to exercise its discretion to dismiss the complaint under s. 34(1)(a) of the Code on the basis that Mr. Snow's complaint "could or should be more appropriately dealt with under another Act". The Commission declined.
35To hear Honda's present motion is not to review the Commission's decision, but to determine whether issue estoppel applies to the Tribunal's proceedings and to determine whether it would be an abuse of the Tribunal's process to proceed: O'Connor v. Canadian National Railway Co., 2006 CHRT 5 [ CHRR Doc. 06-241] at § 18 (" O'Connor"); Canada (Human Rights Commission) v. Canada Post Corp. (2004), 2004 FC 81, 49 C.H.R.R. D/172 at § 10 (" Cresmaco F.C."); Jeffrey v. Dofasco Inc. (No. 3) (2001), 2001 CanLII 26216 (ON HRT), 39 C.H.R.R. D/500 (Ont. Bd.Inq.); Chan v. Ontario Power Generation Inc. (2000), 2000 CanLII 20860 (ON HRT), 37 C.H.R.R. D/351 (Ont. Bd.Inq.).
What is the doctrine of issue estoppel?
36The doctrine of res judicata (of which issue estoppel is one part) has two common rationales: the first is the need for finality; the second is that a party should not be "vexed" twice by the same cause: Cremasco v. Canada Post Corp. (2002), 2002 CanLII 61852 (CHRT), 45 C.H.R.R. D/410 at § 50, (" Cremasco, Tribunal"); aff'd (2004), 2004 FC 81, 49 C.H.R.R. D/172 (F.C.) (" Cresmasco F.C."); and 2004 FCA 363 [ CHRR Doc. 04-654] (" Cresmasco F.C.A.").
37The prompt, final and binding resolution of workplace disputes is of fundamental importance, both to the parties and to society as a whole: Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42, 47 C.H.R.R. D/182 at § 50.
38However, there has also been some reluctance to apply the doctrine of issue estoppel to the determination of human rights complaints by tribunals such as this one. One of the primary concerns is that the dismissal of a complaint deprives the parties of the opportunity to have the merits of the case determined by a tribunal that specializes in the adjudication of human rights disputes. Therefore, it is appropriate to use caution and restraint in the application of the doctrine of res judicata to the adjudication of human rights complaints: O'Connor, supra, at § 22.
39The application of the doctrine is to be determined on a case-by-case basis, paying close attention to the particular facts of the case, and adjudicators have the discretion to refuse to apply the doctrine if doing so would work an injustice.
40There are two principal branches of the doctrine of res judicata. The first branch is known as issue estoppel. Issue estoppel applies where there are common issues in the two proceedings. The issues in question in the second proceeding must have been necessary to the decision in the first proceeding. Depending on the nature of the issue in respect of which the estoppel is being raised, issue estoppel may bar re-litigation of only a discrete issue or it may bar the second action in its entirety ( O'Connor, supra, at § 24). The second branch of res judicata, known as "cause of action" estoppel, is not raised in this case.
41The criteria to be met for the application of issue estoppel are as follows:
· the same questions are being decided in both proceedings
· the judicial decision which is said to create the estoppel is a final decision
· the parties, or their privies, are the same.
I. SAME QUESTION
42For this requirement to be met, the determination of the issue in the first litigation must have been necessary to the result. In other words, issue estoppel covers fundamental issues determined in the first proceeding, issues that were essential to the decision ( O'Connor, supra, at § 27).
43As the Ontario Court of Appeal stated in Rasanen v. Rosemount Instruments Ltd. (1994), 1994 CanLII 608 (ON CA), 112 D.L.R. (4th) 683 at 703, a different characterization of the issues and process for analyzing them does not necessarily mean different questions.
II. FINAL DECISION
44Although originally developed in the context of the civil courts, over time the doctrine of issue estoppel has been extended to decisions by administrative bodies (Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, [2001] 2 S.C.R. 460 at § 21). Where there is a process of appeal or reconsideration that the party does not utilize, the decision at first instance is considered final: O'Connor, supra, at § 46. There would seem to be no reason why a decision by the WSIB or WSIAT should not equally be considered a "judicial" decision.
III. SAME PARTY OR PRIVY
45When the parties to the proceedings are not the same, this aspect of the test may still be met if one party was the privy of another in the previous proceedings.
46In order to be a privy, there must be a sufficient degree of common interest between the party and the privy to make it fair to bind the party to the determinations made in the previous proceedings: Danyluk, supra, at § 60. Decisions about whether there is a sufficient degree of mutual or common interest to say that one party was the privy of another must be made on a case-by-case basis.
47It would not be appropriate to reverse or relax the long-standing application of the privity/mutuality requirement: Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77 ("CUPE").
Does issue estoppel apply in this case?
48In this case, I am not satisfied that any of the criteria of issue estoppel have been met. Honda has not provided me with a "decision" of the WSIB determining that Honda was unable to accommodate Mr. Snow at its workplace in March 2003. Honda asserts that it is implicit in the referral of Mr. Snow to the LMR program that the WSIB must have determined that Honda could not accommodate Mr. Snow. However, there is no "decision" that I can assess to determine whether the issues decided by the WSIB are the same ones before me. Therefore, I am not satisfied that there is a final decision by the WSIB on issues which are substantially the same as those raised by Mr. Snow's complaint.
49The parties in the WSIB matter are Mr. Snow, Honda and the WSIB. The parties before this Tribunal are Mr. Snow, Honda, the Commission and the personal respondents. The Commission did not participate in the WSIB proceedings. The respondents submit that the Commission should be considered a privy to Mr. Snow. They rely on the cases of Axton v. B.C. Transit, [1996] B.C.C.H.R.D. No. 25 (QL) [1996 CanLII 20075 (BC HRT), 28 C.H.R.R. D/337] and Cote v. Canadian Forest Products Ltd., [2001] B.C.H.R.T.D. No. 13 (QL) [ CHRR Doc. 01-045]. In those cases, workers first filed grievances and subsequently filed human rights complaints. The employers sought to apply issue estoppel against the complainants for those issues that had been determined by the prior arbitration decisions. The parties in the arbitrations were the unions and the employers. The parties in the human rights proceeding were the workers and the employers. In both cases, the Tribunal found that the unions were privies to the individual workers, and concluded that the parties in the two proceedings were the same. At that time, the Commission was no longer a party to human rights proceedings in British Columbia. These cases support an argument that a union may be found to be a privy of a worker/complainant. They do not support an argument that the Commission is a privy to the complainant.
50The Commission and the complainant are distinct parties to the proceedings under the Code, each having a specific role, the role of the Commission being that of representing the public interest. I find that the Commission is not a privy of Mr. Snow: Tweten v. RTL Robinson Enterprises Ltd. (No. 1), 2004 CHRT 8 [reported 50 C.H.R.R. D/147] and cases cited therein.
51Accordingly, I decline to apply the doctrine of issue estoppel to any issues arising from Mr. Snow's complaint.
What is an abuse of process?
52Tribunals have the jurisdiction to stay or dismiss complaints if to proceed would amount to an abuse of process. In Ontario, this discretionary power is confirmed by s. 23(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, which provides that "a tribunal may make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes".
53The Supreme Court of Canada confirmed in Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] S.C.J. No. 43 (QL) [ 38 C.H.R.R. D/153], that remedies available to remedy an abuse of process include a stay of proceedings, orders for an expedited hearing, and costs.
54The circumstances that might ground a successful abuse of process motion are not closed. To date, some of the circumstances which have been identified as potentially giving rise to an abuse of process include:
delay between the date of the occurrence and the Tribunal proceedings which causes such prejudice and unfairness that it would be an abuse to continue the proceedings: (Ontario (Human Rights Comm.) v. Dofasco Inc. (No. 4) (2004), 49 C.H.R.R. D/277, 2004 HRTO 5; Anonuevo v. General Motors of Canada Ltd. (No. 3) (1998), 1998 CanLII 29850 (ON HRT), 32 C.H.R.R. D/322 (Ont. Bd.Inq.)
the fact that the complainant has settled with the respondent and signed a release agreeing not to pursue a complaint in circumstances that would make it an abuse of process to pursue the complaint: Pritchard v. Ontario (Human Rights Comm.) (No. 1) (1999), 1999 CanLII 15058 (ON SCDC), 35 C.H.R.R. D/39 at § 17 (Ont. Div.Ct.); Chow (Re) (1999), 1999 ABQB 1026, 37 C.H.R.R. D/442 (Alta. Q.B.); Brine v. Canada (Human Rights Comm.), 2003 CHRT 17 [ CHRR Doc. 03-128]
when the complainant's behaviour has caused such prejudice and unfairness that it would [be] an abuse to continue the proceedings: Patel v. Minto Developments Inc. (No. 2) (1996), 1996 CanLII 20055 (ON HRT), 26 C.H.R.R. D/444 (Ont. Bd.Inq.); Johnson v. East York Board of Education (No. 2) [ 1991 CanLII 13131 (ON HRT), 17 C.H.R.R. D/175].
when the allegations of discrimination have been heard and determined appropriately in another forum: O'Connor; supra, Cremasco, Tribunal, supra; Sewak v. KCL West Holdings Inc. (No. 2), 2004 BCHRT 16 [ CHRR Doc. 04-039]; Tweten, supra; Jeffrey v. Dofasco Inc. (No. 3), supra; Chan v. Ontario Power Generation Inc., supra; British Columbia v. Tozer (1998), 1998 CanLII 1293 (BC SC), 33 C.H.R.R. D/327.
Abuse of process because the issues have already been determined in another forum
55The Supreme Court of Canada has stated that the doctrine of abuse of process is appropriately used to preclude re-litigation in circumstances where the strict requirements of issue estoppel (typically the privity/mutuality requirements) have not been met, but where allowing the litigation to proceed would nonetheless violate principles such as judicial economy, consistency, finality, and the integrity of the administration of justice: CUPE, supra, at § 37. In the CUPE case, the issue was the re-litigation of a criminal conviction in an arbitration proceeding. The Supreme Court's reasoning has since been applied in the human rights context: see cases listed in § 54.
56In Cremasco, Tribunal, supra, the Tribunal asked itself the question: "Would it be fair to proceed?" The Tribunal also stated that the public perceives the human rights process as an integral part of the justice system. Therefore, if the reputation of the larger system is to be preserved, one must consider whether, in the view of reasonable and informed but ordinary people, it would be fair to proceed with the complaint, where the issues before the Tribunal have already been heard and determined in a different forum. This decision was upheld by the Federal Court: Cremasco, F.C., supra, and the Federal Court of Appeal: Cremasco, F.C.A., supra.
57Having reviewed the cases, it appears that the some of the factors that human rights adjudicators have considered in deciding whether it would be an abuse of process to determine issues which have been decided by another decision-maker in another forum include:
· the wording of the other statute
· the purpose of the other legislation
· the availability of an appeal in the other proceedings
· the safeguards available to the parties in the other administrative procedure
· the expertise of the decision-maker in the other proceeding
· the circumstances giving rise to prior administrative proceedings
· the issues decided in the other proceedings
· the human rights principles applied in the other proceeding
· whether fresh evidence is available which was not available in the earlier proceeding
· whether the earlier action was tainted by fraud, dishonesty or unfairness of any kind
· any potential injustice.
Would it be an abuse of the Tribunal's process to hear some or all of Mr. Snow's complaint?
58I find that there is merit to the respondents' assertion that the Legislature did not intend the Tribunal to re-litigate issues that have been fully canvassed under the WSIA. Indeed, given the large number of WSIA claims, the Tribunal would be swamped if injured workers were to routinely re-litigate the issue of accommodation at the Tribunal.
59In an appropriate case, it may be that a WSIB decision that a worker cannot be accommodated without undue hardship to the employer should prevent the employee from re-litigating that same issue before the Tribunal. The WSIB applies a standard of undue hardship to the accommodation of injured workers and has expertise in that area. There is a full right of appeal to the WSIAT, which also has significant expertise in that area.
60However, at this stage, I am not prepared to find that it would be an abuse of process to hear and determine Mr. Snow's complaint of discrimination. The following factors militate against the exercise of my discretion to dismiss Mr. Snow's complaint:
· The issues before me in this proceeding include whether Honda appropriately accommodated Mr. Snow after March 2003 and whether his dismissal in 2004 was discriminatory. There are also allegations of harassment by individual managers, which are discussed below.
· I have no formal "decision" of the WSIB before me stating that Honda could not have accommodated Mr. Snow in March 2003 without undue hardship. Rather, it appears that following a mediation between Honda, WSIB and Mr. Snow, Mr. Snow was referred to a LMR program. I have no information about what process of reasoning or evidence led to that referral. I cannot assess whether the WSIB applied appropriate human rights principles to that determination.
· The WSIB, in a letter dated April 1, 2004, advised Mr. Snow that the LMR program was terminated because of non-co-operation. Honda dismissed Mr. Snow as a result of this decision. The issue before me is not whether Mr. Snow co-operated with the LMR program, or whether Honda was entitled to dismiss Mr. Snow for non-co-operation in the LMR, but whether Mr. Snow's termination was tainted by discrimination.
Other allegations of abuse of process
NON-COMPELLABILITY OF WSIB OFFICIAL & WSIB DOCUMENTS
61Honda asserts that the non-compellability of WSIB officials involved in assessing and determining accommodation would cause it substantial prejudice, because Honda will not be able to call WSIB staff to explain their determinations. However, if the WSIB had made a formal decision regarding Honda's inability to accommodate, there would be no need to call WSIB officials. The lack of a formal decision is what prevents the application of issue estoppel and abuse of process, not the non-compellability of WSIB staff. In any event, informal WSIB staff deliberations are not relevant to the proceedings before me. I do not accept that the non-compellability of WSIB staff is prejudicial to Honda. If Honda wishes to call its own witnesses to explain what they understood by the WSIB process, and to explain how it impacted on their treatment of Mr. Snow, they may do so, but only if it is relevant to an issue in these proceedings.
62Honda also notes that many of the documents relating to Mr. Snow's WSIB claim are confidential and cannot be relied upon by the employer. The employer has an obligation to keep confidential the employee's WSIB health records (ss. 59(6), 150(1), 158(1), and 180 of WSIA).
63Accordingly, Honda asserts that it would be prejudicial to Honda to attempt to respond to the complaint in light of these evidentiary hurdles. I note that s. 57 of the WSIA permits the employee to obtain a copy of his or her Board file and it appears that some, or all of Mr. Snow's file has been provided to the Commission. If documents from the WSIB file are relevant to an issue in the proceedings before me, Mr. Snow has an obligation to produce them.
MR. SNOW'S TAKING INCONSISTENT POSITIONS
64Honda asserts that permitting Mr. Snow to pursue two diametrically opposed arguments with respect to his accommodation in two different adjudicative fora is manifestly unfair. Honda alleges that Mr. Snow was taking the position before the WSIB and WSIAT that he is "competitively unemployable", whereas he is asserting to this Tribunal that he could work if accommodated. A similar argument was made to the Board of Inquiry in the case of Jeffrey v. Dofasco Inc. (No. 3), supra. Dofasco argued that Ms. Jeffrey had portrayed herself as totally disabled in order to obtain a disability pension under the Canada Pension Plan, but had taken an inconsistent position for the purpose of the human rights complaint. The Board of Inquiry did not dismiss Ms. Jeffrey's complaint at the outset on this basis, preferring to hear the evidence before determining the extent of Ms. Jeffrey's disability. I have no evidence before me as to what position Mr. Snow is taking in the WSIA proceedings, or the context. I am not aware of the standards used by the WSIB to determine whether a worker is "competitively unemployable" and whether that status is determined in light of the employer's duty to accommodate. I am not aware whether Honda's duty to accommodate under the WSIA expired two years after the onset of the work injury. The effect of Mr. Snow possibly taking contradictory positions before different tribunals would be better determined after hearing the evidence.
COST OF DEFENDING TWO PROCEEDINGS
65Honda asserts that it would be unfair for it to incur the cost of re-litigating similar issues before the WSIB and the Tribunal. The fact that injured workers may claim benefits under the WSIA and file complaints of discrimination under the Code, will sometimes result in employers facing dual proceedings on similar issues. However, the financial cost of participating in both proceedings (of which I have no evidence) does not amount to an abuse of process.
66None of the above three arguments, alone or taken together, persuade me that it would be an abuse of process or unduly oppressive to Honda to continue this human rights proceeding.
Is there a prima facie case for the respondents to meet?
67Honda asserts that there is no prima facie case to support the remainder of the allegations in the complaint and that the case summary leading to the Commission referral did not establish a prima facie case.
68Mr. Snow is alleging that the personal respondents pressured him to do work beyond his limitations; made disparaging remarks and questioned the genuineness of his disability and his efforts to return to work; and denied him training opportunities which would have facilitated his return to work. The Commission has agreed to provide further particulars of the alleged discriminatory activities of Mr. McCutcheon and Doug Korin, which on the face of the complaint, appear to relate to the failure to provide training opportunities.
69My task is not to review the Commission's decision to refer those allegations to the Tribunal, but to hear the evidence relating to those allegations during this proceeding. It is sufficient to find that Mr. Snow's assertions, if supported by the evidence, would amount to violations of the Code. They may amount to harassment on the basis of disability (disparaging remarks, pressure) or discrimination on the basis of disability (denial of training opportunities).
Request for a Stay of Tribunal's Proceedings
70In its reply submissions, the respondents for the first time requested a stay of the Tribunal's proceedings to pursue judicial review of the Commission's decision to refer the complaint to the Tribunal. This is not an appropriate issue to raise in reply; it should have formed the basis of a separate request and the Commission and complainant given an opportunity to respond. However, as I am not granting the stay, it is not necessary to seek their responses.
71An adjournment pending judicial review of the Commission's decision to refer the complaint to the Tribunal is an extraordinary remedy; the party requesting it must clearly demonstrate that the balance of convenience overwhelmingly favours the granting of it: McKinnon v. Ontario (Ministry of Correctional Services), 2005 HRTO 48 [ CHRR Doc. 05-699]. I am not satisfied that the respondents have met that test. The Commission referred Mr. Snow's complaint to the Tribunal on February 22, 2007, and the respondents offered no explanation why they did not commence judicial review proceedings at that time. An Initial Conference Call was scheduled for March 23, 2007, but the parties agreed to bypass that step and proceed directly to mediation on May 2, 2007. Mediation was unsuccessful and dates for exchange of pleadings and production were set. A pre-hearing conference call was held on September 27, 2007, and the parties agreed to the following hearing dates: December 10, 11, 12, 13, 17, 18, and 19, 2007. The respondents' pre-hearing requests to dismiss and/or stay the proceedings were conducted via written submissions. The failure of the respondents to act in a timely manner in pursuing its judicial review application and the numerous hearing dates set aside for this proceeding demonstrate that the balance of convenience does not overwhelming[ly] favour granting the stay.
ORDER
72The request to dismiss the complaint without a hearing is denied.
73The request for a stay of the Tribunal's proceedings is denied.