Mayta v. Canada Lands, 2009 HRTO 827

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N

Isidoro Mayta Applicant

-and-

Canada Lands Company, CLC Limited and Doris Bradley Respondents

AND B E T W E E N:

Isidoro Mayta Applicant

-and-

National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW Canada), Local 4271 Respondent

INTERIM DECISION

Adjudicator: Kaye Joachim Date: June 11, 2009 Citation: 2009 HRTO 827 Indexed as: Mayta v. Canada Lands

APPEARANCES BY

Isidoro Mayta, Applicant ) Ernest Guiste, Counsel

Canada Lands Company, CLC Limited ) Michael Kennedy, Counsel and Doris Bradley, Respondents )

National Automobile, Aerospace, Transportation ) and General Workers Union of Canada ) Lewis Gottheil, Counsel (CAW Canada), Local 4271, Respondent )

Introduction

1These Applications were filed under s. 53(3) of the Human Rights Code, R.S.O. 1990, c.H-19, as amended (the "Code"). A Case Resolution Conference (CRC) was held on May 28, 2009 to hear the respondents' requests for early dismissal.

2The applicant was employed in the 360 Restaurant located at the CN Tower, owned by Canada Lands Company, CLC Limited (the "employer") and is a member of the Canadian Auto Workers (Canada), Local 4271 (the "union"). He self-identifies as a visible minority whose second language is English and as a person with a disability.

3The applicant began employment with the employer in 1995. In 2002, he was diagnosed with a medical condition affecting the kidneys. Since 2003, he has been dependent on dialysis treatments three to four times per week.

4The applicant alleges that after he advised the employer of his illness, he experienced harassment and discrimination. In particular, he alleges that the General Manager, Doris Bradley, unfairly scrutinized and criticized his work, disciplined him, and generally harassed him because of his disability. In addition, the respondents failed to accommodate his disability-related needs by providing appropriate shifts and work duties. He alleges that his employment was terminated on September 14, 2006 because of disability.

5The employer denies that the applicant was treated differently and asserts that all criticism and discipline was justified by the applicant's conduct, and unrelated to his disability. The employer also asserts that the applicant's disability-related needs were accommodated.

6The applicant filed a grievance with the union challenging his termination. He asserts that the union supported White members of the union in similar circumstances, but did not properly investigate and refer his grievance to arbitration. The applicant also asserts that the union contributed to the employer's failure to accommodate his needs in May 2006 and thereby became a party to the employer's employment discrimination.

7The union denies that the applicant's race, ethnic origin and/or disability were factors in the manner it investigated the applicant's termination grievance or in its decision not to refer the grievance to arbitration. The union denies that they participated or contributed to any failure to accommodate the applicant's disability.

Employer's Request for Early Dismissal

8The employer sought dismissal of those parts of the Application that referred to events more than one year prior to August 23, 2007, the date the complaint against the employer was filed with the Ontario Human Rights Commission (the "Commission"). There is no dispute that the allegations related to the termination of employment which occurred on September 14, 2006 were filed in a timely fashion.

9Section 34 of the Code provides:

Section 34(1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series.

(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

10In my view, the Application sets out factual allegations which could support a finding of an ongoing harassment and discrimination since the applicant disclosed his disability in 2002, culminating in his dismissal in September 2006. In these circumstances, I find that the Application was filed in a timely fashion, within the meaning of section 34(1)(b).

11The employer's request for early dismissal of part of the Application is denied.

Union's Request for Early Dismissal

12There are two aspects to the alleged discrimination by the union. The union allegedly discriminated against the applicant in its handling of the termination grievance and the union allegedly became a party to the employment discrimination by opposing the required accommodation. The union seeks the dismissal of the first aspect of the alleged discrimination on the basis of section 45.1 of the Code, issue estoppel and, abuse of process and of the second aspect of the allegation discrimination on the basis of delay.

Section 45.1, Issue Estoppel, and Abuse of Process

13The applicant filed a complaint against the union with the Ontario Labour Relations Board (the "OLRB") alleging that the union had breached its duty of fair representation in the manner it handled his termination grievance. The OLRB dismissed the complaint on May 14, 2008. The union submitted that the Tribunal should decline to relitigate the Union's handling of the termination grievance.

14Section 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.

15It is helpful to consider s. 45.1 in two parts: (1) whether there was another "proceeding" and (2) if so, whether it "appropriately dealt with" the substance of the Application. With regard to the second part, the Tribunal may consider whether the Application arises from the same facts that provided the basis for the other proceeding, whether the substance of the issues raised in each forum was substantially the same, and whether the matter raised was "appropriately dealt with" in the other proceeding.

16The applicant noted that during the OLRB's consultation process the parties were not permitted to call oral evidence or cross examine the witnesses. In these circumstances, the applicant submitted that I should be wary of applying section 45.1, issue estoppel or abuse of process. I disagree. I find that the OLRB's consultation process is a proceeding within the meaning of section 45.1 of the Code and for the purposes of applying the doctrines of issue estoppel or abuse of process. While in this case, the OLRB Vice-chair determined that he was able to resolve the issues in dispute before him without hearing the parties' oral evidence, that in my view, does not render the consultation less of a "proceeding."

17The factual allegations raised in the applicant's duty of fair representation complaint are almost identical to the factual allegations set out in the Application. One allegation not asserted in the duty of fair representation complaint was that the applicant was personally aware white union members had been treated more favourably in termination grievances than the applicant.

18The issues before the OLRB in this particular duty of fair representation complaint were whether the union's conduct was arbitrary, or whether it acted in bad faith. The issue before me is whether the union's conduct was discriminatory.

19Thus, I am satisfied that the OLRB's consultation was a proceeding in which the facts and issues raised were similar but not identical to the facts and issues raised before me.

20The OLRB concluded that the union's investigation of the applicant's termination grievance and the decision not to refer the grievance to arbitration was not arbitrary or made in bad faith. With respect to the discrimination branch of the test, the OLRB noted that the applicant did not "refer to any facts or make any submissions at the consultation regarding "discrimination." Accordingly, there was no finding on discrimination, as the applicant did not raise any allegations of discrimination in his OLRB complaint.

21In these circumstances I am not satisfied that the issue of whether the union's handling of the termination grievance was discriminatory has been appropriately dealt with and I decline to exercise my discretion to dismiss that part of the Application under section 45.1 of the Code.

22In the alternative, the respondents submitted that the applicant was barred from raising this issue by the principles of issue estoppel or abuse of process.

23In order to establish an estoppel, the respondents must establish the parties to the two proceedings are the same, the two proceedings raise the same, or substantially the same, issues, and the judicial decision which is said to create the estoppel is a final decision. The abuse of process doctrine has been considered by the Tribunal in cases 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.

24Applying the elements of the doctrines of issue estoppel and abuse of process, it is clear that the parties before the OLRB were the same as the parties before me. The OLRB's decision is final, subject to a request for reconsideration and/or an application for judicial review.

25Generally, issue estoppel and abuse of process may be applied where a party had an opportunity to raise an issue but failed to do so. In this case, the applicant had the opportunity to raise the discriminatory conduct by the union but chose not to do so.

26In this case, I have decided to exercise my discretion not to apply issue estoppel or abuse of process in this case for the following reason.

27The Legislature has indicated its intention to prevent duplication of proceedings by its enactment of section 45.1 of the Code which requires the Tribunal to be satisfied that the substance of the Application has been appropriately been dealt with. This can be contrasted to section 34(1)(a) of the previous Code which provided:

Where it appears to the Commission that:

the complaint is one that could or should be more appropriately dealt with under an Act other than this Act;

The Commission may in its discretion, decide to not deal with the complaint.

28The change in wording from the old section 34(1)(a) to the present section 45.1 reinforces the approach that the Tribunal should not apply section 45.1 in circumstances where the substance of an application could have been appropriately dealt with in another proceeding, but only where the substance of the application actually was appropriately dealt with.

29In my view, it would thwart the legislative intention of section 45.1 to apply the broader principles of issue estoppel and abuse of process in this case.

30I understand the union's frustration in having to respond to two proceedings when the OLRB could have dealt with the applicant's concerns of discrimination had the applicant raised them. However, in the particular circumstances of this case, where the specific factual allegation of differential treatment on the basis of race and ethnic origin was not alleged and the OLRB did not address it, I decline to exercise my discretion to apply the principles of issue estoppel or abuse of process to the allegation that the union's handling of the applicant's termination grievance was discriminatory.

31Nonetheless, I do find that is appropriate to apply the principle of abuse of process to prevent the applicant from re-litigating the factual disputes that have been heard and determined by the OLRB. In ruling that the union's handling of the applicant's termination grievance was not arbitrary or conducted in bad faith, the OLRB made the following findings of facts:

• The union was aware of the applicant's mistrust and strained relationship with Mr. Thomas, the President of the Local. Accordingly, the Union's National President, Mr. Smith, rather than the President of the Local, Mr. Thomas, filed the grievance, met the applicant, investigated the allegations of misconduct alleged by the employer and personally spoke with the some of the witnesses.
• The union properly investigated the allegations against the applicant. Mr. Smith reviewed management's evidence, the union spoke with six witnesses to the incidents including one of the applicant's witnesses. None of the witnesses was helpful to the applicant.
• The union properly considered the procedural arguments raised by the applicant to prevent the employer from relying on the alleged misconduct and the Union's assessment that those procedural arguments would not be successful was not arbitrary.

32The applicant will not be permitted to challenge or call evidence to challenge any of the above facts.

Delay

33The union alleges that its alleged failure to assist the applicant in obtaining an accommodation of his disability-related needs in May 2006 occurred more than one year before the applicant filed the August 23, 2007 complaint against the union.

34The applicant did not offer any explanation for the delay, arguing instead that the union's action or inaction in May 2006 was part of an ongoing series of events, such that the one year time limitation did not apply. I do not accept that argument. The complaint against the union, unlike the complaint against the employer, does not assert a series of events culminating in the union's handling of the termination grievance. The applicant's counsel agreed, upon questioning by me at the start of the hearing, that the Commission complaint against the union essentially comprised two unrelated aspects: the May 2006 request to the union for assistance with respect to obtaining certain shifts, and the handling of the termination grievance.

35I find that the May 2006 allegations against the union were filed more than one year after the events and the applicant has offered no explanation for the delay. In these circumstances, I am unable to conclude that the delay was incurred in good faith and therefore the applicant may not pursue the May 2006 allegations against the union.

Next Steps

36As discussed at the CRC, this matter will proceed on September 10, 11, 18 and 30, 2009 (the latter date may be cancelled if the union representative's presence is required on September 30, 2009).

37The parties shall file their statements of additional fact and remedy, make disclosure and file witness statements, as restricted by my rulings above, in accordance with the following timetable:

a. applicant's statement of facts, remedy and disclosure of relevant documents by 30 days from date of the Interim Decision;

b. respondents' statement of additional facts and response to remedy, if any, disclosure of relevant documents, 15 days following the receipt of the materials in paragraph a. above; and,

c. witness statements and documents intended to be relied upon, by August 20, 2009.