Delos Santos v. Maple Lodge Farms Ltd., 2009 HRTO 1690

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Marderic Delos Santos

Applicant

-and-

Maple Lodge Farms Ltd., Nadia Clements, Bob Luce and Adelia Jeronimo

Respondents

DECISION

Adjudicator: Michelle Flaherty

Date: October 15, 2009

Citation: 2009 HRTO 1690

Indexed as: Delos Santos v. Maple Lodge Farms

APPEARANCES

Marderic Delos Santos, Applicant ) Cecil Norman and ) Marcia Channer, Representatives

Maple Lodge Farms Ltd., Nadia Clements, ) Bob Luce and Adelia Jeronimo, Respondents ) Martin Denyes, Counsel

United Food and Commercial Workers ) Marcia Barry, Counsel, and Canada, Local 175 ) Fernando Reis, Representative

1This is an Application under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), in which the applicant alleges that he was discriminated against in the context of his employment with the corporate respondent on the basis of his disability.

2In their Response, the respondents asked the Tribunal to dismiss the Application because they contend an arbitral decision has appropriately dealt with the substance of the Application.

3On February 11, 2009, the Tribunal issued an Interim Decision, 2009 HRTO 150, inviting submissions from the parties and the United Food & Commercial Workers Canada Locals 175 and 633 (the “union”) on the following preliminary question:

Does the arbitration decision appropriately deal with the substance or part of the Application such that it should be dismissed, in whole or in part, pursuant to section 45.1 of the Code?

4An oral hearing was held on September 30, 2009 and the Tribunal heard submissions from the parties and the union.

5I have concluded that the substance of the Application has been appropriately dealt with in another proceeding. The following reasons are the basis for my conclusion.

FACTUAL BACKGROUND

6The applicant was employed by the corporate respondent as a general helper beginning in 2000. He suffered a workplace injury on September 1, 2005, and this left him with a severe leg injury, which caused him to be off work from September 1, 2005, until August 2006.

7When the applicant returned to work, his injury prevented him from driving his personal vehicle to and from work. To facilitate the applicant’s return to work, the corporate respondent paid for taxi service from the applicant’s home to his place of work for the period of August 2006 to April 30, 2007. Initially, taxi service was identified as a necessary accommodation measure by the Workplace Safety and Insurance Board (“WSIB”), but as of at least February 12, 2007, WSIB indicated that such service was no longer necessary to accommodate the applicant.

8In February 2007, the corporate respondent advised the applicant that it intended to discontinue taxi service. It later agreed to continue this service for a short time to allow the applicant to make the necessary arrangements to get to work. On April 24, the corporate respondent advised the applicant that it would discontinue the taxi service as of April 30, 2007. As of at least May 4, 2007, it denied the applicant’s request for further taxi chits.

9The applicant attended a medical appointment on May 7, 2007, and advised the corporate respondent that he would not attend work that day. The applicant’s absence on May 7 is not at issue and had no bearing on the respondent’s later decision to terminate his employment.

10More central to this Application is the fact that the applicant did not attend work on May 8, 9, 10, and 11, nor did he contact the employer to advise that he would be absent.

11On May 14, 2007, the corporate respondent wrote to the applicant advising him that his employment was terminated in accordance with article 10.13 of the collective agreement. The letter stated:

You have not reported for your scheduled shift since Tuesday, May 8, 2007 and the Company has not heard from you. You must now abide by the article 10.13(c) [of the collective agreement] which states:

(... )An employee shall lose all seniority and service rights and be deemed terminated if:

(…)

(c) the employee failed to report to work for two (2) consecutive working days without a valid reason.

12The Union grieved the termination and the matter was referred to arbitration. Following an arbitration hearing, Arbitrator Trachuk rendered a decision in favour of the corporate respondent and upheld the termination.

13Before the arbitrator, the Union argued that the corporate respondent knew or ought to have known that the applicant would not attend work from May 8 to May 11 because it knew the applicant required taxi chits in order to get to work and had refused to provide them. This argument was rejected by the arbitrator, who instead made the following conclusions:

a. the applicant failed to report for work for two days without providing a valid reason for his absence;

b. the corporate respondent could not be expected to know that the applicant would not attend work between May 8 and May 11;

c. it was reasonable for the corporate respondent to expect that, by May 8, the applicant would find another way to get to work;

d. the corporate respondent had no obligation to pay for taxi service indefinitely; and

e. in any event, given the notice provided in this case, the inability to get transportation to work is not a valid reason for absence.

THE NATURE OF THE APPLICATION

14In the Application, the applicant appeared to allege that he was harassed at work and that the respondents failed to provide appropriate accommodation measures in the form of taxi chits. At the hearing, however, the applicant’s representative narrowed the issues. He stated that, for the purposes of the Application, the only allegations of discrimination relate to the respondents’ decision to terminate the applicant’s employment and their failure to consider his disability as a factor in the application of article 10.13(c) of the collective agreement. The applicant is not alleging any failure to accommodate his disability during the course of his employment. Nor is he alleging that the corporate respondent’s decision to refuse taxi chits as of April 30, 2007, is discriminatory.

15While the applicant acknowledges that the arbitral decision addresses the termination, he argues that the arbitrator applies article 10.13(c) of the collective agreement mechanically, without considering whether the application of the article in the applicant’s circumstances constitutes discrimination under the Code.

16The arguments advanced by the applicant in both proceedings are slightly different. Before the arbitrator, the applicant stated that the corporate respondent knew or ought to have known he would be absent because it knew he had no means of getting to work. Before the Tribunal, however, the applicant contends that he suffered pain and discomfort following his May 7 medical appointment. He says the corporate respondent knew or ought to have known that the applicant would not be able to work as a result and should, at a minimum, have taken additional steps (such as seeking an explanation from the applicant) before deciding to terminate his employment. The applicant argues that because the latter argument was not before the arbitrator, it should be dealt with by the Tribunal.

ANALYSIS

17Section 45.1 of the Code states:

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.

18The application of section 45.1 of the Code has been considered by the Tribunal, notably in Campbell v. Toronto District School Board, 2008 HRTO 62 and Noble v. York University, 2009 HRTO 1201.

19It is clear from these decisions that the Tribunal places a high value on the finality of litigation, judicial economy and the recognition of the jurisdiction of other adjudicative bodies under the Code. In applying section 45.1, however, the principal concern is not whether there has been related or parallel litigation, but whether the other proceeding has appropriately dealt with the substance of the application. In this regard, the Tribunal will consider whether the applicant has already had a full and fair opportunity to have the human rights claim considered by an adjudicator who had the jurisdiction to interpret and apply the Code. (See Noble, supra, at para. 31.)

20It is also clear that arbitrators have jurisdiction to apply the Code and that a grievance hearing constitutes a proceeding for the purposes of section 45.1 of the Code.

21The question, therefore, is whether the issues raised in the Application were appropriately dealt with by the arbitrator.

22The arbitral decision does not refer to the Code explicitly. The applicant urges me to infer from this that issues of discrimination were not put before or decided by the arbitrator. However, in Noble, supra, the Tribunal found that the failure to refer to a violation of the Code does not automatically mean that section 45.1 does not apply. Section 45.1 requires more than a review of the form of the other proceeding and requires instead that the Tribunal look to the substance of the matters addressed.

23It is clear to me that the central issue in both proceedings is the termination of the applicant’s employment. In my view, while the arbitrator does not refer to the Code explicitly, she does consider whether appropriate accommodations were in place. Importantly, and contrary to what is argued by the applicant, the arbitrator does consider the reasons presented by the applicant for his failure to attend work or follow call-in procedures. She concludes that his explanation (no transportation) is not a valid reason for his absence and that the termination is appropriate.

24The respondents argued that article 10.13(c) of the collective agreement is written in such a way that it cannot be applied mechanically without consideration of human rights factors. The article refers to termination after two days of unreported absences “without a valid reason”. The respondents argued that, based on the words “without a valid reason”, arbitrators must consider the basis for an employee’s absence, including any applicable Code-related factors.

25I find that, while the arbitrator does not make specific reference to the Code, she conducted the type of analysis contemplated by the Code and considered the reasons advanced by the applicant for his unreported absences. In my view, the arbitrator has appropriately dealt with the human rights issues raised in both the grievance and the Application.

26I reject the applicant’s argument that the issue raised in the Application is materially different from what was placed before the arbitrator. The applicant is seeking to re-litigate a case which has already been determined. He is attempting to do so by slightly varying both the nature of the arguments and, more troublingly, his evidence regarding the reasons for his absence and failure to call-in. In my view, section 45.1 of the Code is specifically designed to capture situations such as these.

27The Application is dismissed pursuant to section 45.1 of the Code.