Barker v. Service Employees International Union, 2009 HRTO 1253

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Megan Barker

Applicant

-and-

Service Employees International Union, Local 1 Ontario and George Surdykowski

Respondents

INTERIM DECISION

Adjudicator: Faisal Bhabha

Date: August 13, 2009

Citation: 2009 HRTO 1253

Indexed as: Barker v. Service Employees International Union

1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on January 28, 2009, alleging discrimination in employment. The respondent, Service Employees International Union Local 1 (“SEIU”), was, until the applicant’s dismissal, her employer. The individual respondent, George Surdykowski, is a labour arbitrator who heard and issued a decision on the applicant’s grievance challenging her discharge. Mr. Surdykowski filed a Response on March 20, 2009, in which he requested that the Application against him be dismissed without a hearing on the basis that the Tribunal lacks jurisdiction to proceed.

2In an Interim Decision, 2009 HRTO 891, I ordered that the applicant deliver and file submissions addressing the question of whether the Tribunal has the power to consider this Application against the individual respondent. No submissions were filed, although the applicant sent an email to the Tribunal dated July 20, 2009, stating that, upon consulting with a lawyer, she had no further submissions on the issue. Accordingly, I will determine this issue based on the material before me.

3The allegations in the Application as against Mr. Surdykowski relate to the grievance filed by the applicant’s union against the SEIU, in which the union claims the applicant was discharged without just cause. Mr. Surdykowski was appointed to mediate and arbitrate the grievance, exercising powers under ss. 48 and 50 of the Labour Relations Act, 1995, S.O. 1995, c. 1, Sched. A, as amended.

4Mr. Surdykowski argues that as an independent arbitrator exercising binding, adjudicative power, his decision-making is shielded from the applicability of the Code. He relies on the doctrines of issue estoppel and judicial immunity.

5It is clear that the substance of the allegations against Mr. Surdykowski relate exclusively to the conclusions and reasons contained in his June 9, 2008 decision, whereby he found that the applicant had no reasonable prospect of returning to work, and upheld her discharge. I agree with the respondent that this decision is not a “service” within the meaning of the Code.

6My finding is consistent with many recent decisions of the Tribunal, which have defined “services” as not encompassing the “content, reasons and result” of adjudicative decisions made in other forums. See: Baird v. Workplace Safety and Insurance Appeals Tribunal, 2009 HRTO 99; Dann v. Wallace, 2009 HRTO 392; and Lindberg v. Workplace Safety and Insurance Board, 2009 HRTO 463.

7The Application also names the applicant’s former employer, the SEIU, as a respondent. The SEIU has requested dismissal pursuant to section 45.1 of the Code on the basis that the Application is “frivolous and vexations” and that the employer should not be required to re-litigate issues that have already been decided by an arbitrator simply because the applicant does not accept the result of the first proceeding.

8Section 45.1 of the Code provides as follows:

The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.

9The Tribunal’s Rules require that the parties have an opportunity to provide oral submissions when the Tribunal is considering a dismissal pursuant to section 45.1.

10The applicant’s email of July 20, 2009 suggests that the applicant may not be interested in pursuing any part of this Application. The applicant is directed to contact the Registrar within one week of this Interim Decision to advise whether she intends to continue with her Application as against the SEIU. Upon receiving such confirmation, the Registrar will schedule a conference call in order for the Tribunal to hear submissions regarding the SEIU’s request for early dismissal pursuant to section 45.1 of the Code. For the purposes of the conference call, the parties should be prepared to make oral submissions on the following issues:

a. Should the Tribunal dismiss the Application, in whole or in part, pursuant to section 45.1, because the substance of the Application has been appropriately dealt with by the grievance arbitration process?

b. Is the applicant otherwise precluded from re-litigating some or all of the issues and facts that have been decided by the grievance arbitrator?

11If the parties wish to rely on any supporting material for the purposes of the hearing of this issue (including submissions, facts or legal authorities), the parties are directed to serve the material on the other party and file it with the Tribunal by no later than two weeks before the date scheduled for the hearing.

12There remains an outstanding request to intervene by the Ontario Labour-Management Arbitrators’ Association. Given my decision dismissing the Application against Mr. Surdykowski, the Association’s interest in this Application is presumed moot and will be dismissed unless the Tribunal is advised otherwise within one week of this Interim Decision.

13I am not seized.