Zhou v. Mibro Group, 2009 HRTO 967

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Hui Fen Zhou Applicant

-and-

The Mibro Group Respondent

CASE RESOLUTION CONFERENCE DECISION

Adjudicator: Mary Anne McKellar Date: July 6, 2009 Citation: 2009 HRTO 967 Indexed as: Zhou v. Mibro Group

APPEARANCES BY

Hui Fen Zhou, Applicant ) Avvy Yao-Yao Go, Counsel The Mibro Group, Respondent ) Jonathan Cocker, Counsel

Introduction

1This Application under section 53(3) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code") was filed with the Human Rights Tribunal of Ontario (the "Tribunal") on October 21, 2008, and the applicant abandoned her previous complaint to the Ontario Human Rights Commission (the "Commission") filed December 29, 2006.

2Pursuant to the agreement of the parties, the style of cause is amended to remove the personal respondent, Joan McCandless.

ISSUE

3This decision deals with the request of the responding party ("Mibro") for an order dismissing the Application. The parties made submissions in writing and orally at the Case Resolution Conference ("CRC") on May 7, 2009 with respect to the request of Mibro for early dismissal of the Application.

DECISION

4Mibro's request is granted. This Application is dismissed, for the reasons set out below.

THE FACTS

5There is no dispute on the following facts.

6The applicant was employed by Mibro. She was employed in a bargaining unit position.

7The applicant commenced a medical leave in April 2005.

8At the time her leave commenced, the applicant had 17 years of service. She occupied a position in the classification of Screen Printer.

9While the applicant was on medical leave, the Screen Printer classification was eliminated when the equipment was replaced by other machinery. By letter dated July 14, 2005, the applicant was advised of the elimination of the Screen Printer classification and she was laid off effective July 15, 2005. A grievance was filed on her behalf on July 15, 2005, as well as on behalf of the other individual employed in the classification who was also laid off effective July 15, 2005. That individual was actively employed (i.e., not on leave) at the time of the layoff.

10The applicant was cleared by her physician to return to work on August 29, 2005. She was not returned to work at that time.

11The applicant's grievance (along with that of the other employee) was referred to arbitration. The arbitration hearing lasted eight days. The arbitrator's decision issued in writing on July 14, 2006 (the "Award"). It recounts the history set out above, including more detail about the elimination of the Screen Printer classification, and a lengthy discussion of which of the remaining job classifications the applicant had the skills and ability to perform. The grievance(s) succeeded. The Award directed Mibro to do the following:

Accordingly, and for all the foregoing reasons, the grievances of Ms. Zhou and Ms. Guo succeed. Ms. Zhou and Ms. Guo are to be returned to work forthwith without loss of seniority, and to be made financially whole in the matter of wages and all applicable benefits. Wages are to be calculated at the rate of pay for the classification of Machine Operator/General Labourer in the Production Department. For Ms. Zhou this wage calculation is to be made from August 29, 2005, the date the evidence discloses she was medically able to return to work, to the actual date the employer schedules her to return to work following the receipt of this Award, and with the calculation to include interest paid at the prime rate. In the case of Ms. Guo, the wage calculation is to be made from July 15, 2005, the date she was laid off, to the actual date the employer schedules her to return to work following the receipt of this Award, and with the calculation to include interest paid at the prime rate.

I will remain seized in the event there are any implementation difficulties.

12Mibro reinstated the applicant to the position of Machine Operator on August 15, 2006. It paid the applicant the top rate specified in the collective agreement for that classification (which was the same rate applicable to the General Labourer classification), and it also calculated her lost wages dating back to August 29, 2005 at that rate. The applicant had earned a higher hourly rate in her former classification.

13The applicant quit her employment within a few months of her reinstatement, on or about November 3, 2006.

14Subsequent to her last day of work, the applicant complained to Mibro about the rate at which she had been paid subsequent to August 29, 2005. She also raised the issue of the rate of pay with the arbitrator, who advised her to take it up with her trade union. The applicant's complaint to the Commission asserts that she approached the union about the matter and was advised that it could not help her "because the arbitrator made the decision".

15The applicant filed her complaint with the Commission on December 29, 2006. Mibro sought to have the Commission exercise its discretion to dismiss the complaint pursuant to section 34(1) of the Code. By letter dated August 29, 2007, the Chief Commissioner advised the parties that it declined to do so.

16In her complaint and in this Application, the applicant alleges that Mibro's failure to reinstate her at her former rate of pay is a contravention of the Code, and she attributes her "quitting" her employment to her despondency over this situation. The applicant also asserted that at least one other machine operator was paid an hourly rate exceeding the top rate specified in the collective agreement. The monetary relief requested in the complaint is: back pay to August 29, 2005 at a higher rate; and an award of general damages.

THE PARTIES' POSITIONS

17Mibro's Request that the Application be dismissed was based on section 45.1 of the Code, that is, on an assertion that the "substance" of this application was dealt with in the grievance arbitration. Simply put, Mibro's position is that, having determined that Mibro's treatment of the applicant with respect to layoff and recall were not lawful, the arbitrator then prescribed with precision what Mibro should do to remedy that, and Mibro did so.

18In her written submissions in response to Mibro's Request, counsel for the applicant described the substance of her client's case as follows:

The pith and substance of the Applicant's human rights complaint is that the Respondents interpreted and applied the arbitrator's decision in such a manner as to place the Applicant in a disadvantaged position whereby she was given a lower wage rate than other workers in the similar job category and with similar seniority as the Applicant. The Applicant alleges that the Respondents did so because of her disability and as a form of reprisal against her.

Counsel then submitted that since the arbitrator had not scrutinized how Mibro implemented the Award it could not be said that the grievance proceeding dealt with the substance of this Application.

19Despite this characterization of the issue in her written submissions, counsel for the applicant also suggested in her oral submissions that part of the "substance" of this Application is the applicant's assertion that Mibro's decision to lay her off in July 2005 constituted a contravention of the Code. As I understand that allegation, it is quite simply, that Mibro could not lay her off while she was on medical leave without contravening the Code's proscription on discrimination in employment on the basis of disability. There are no particulars or other facts pleaded. Counsel for the applicant submits that the Award failed to address this specific issue and only adjudged the propriety of the layoff as against the provisions of the collective agreement. The accuracy of the applicant's characterization of the issues that the arbitrator examined appears to be confirmed by a letter to the Tribunal from Mibro's counsel dated March 23, 2009, which noted that the issue of a Code contravention was never raised in the grievance itself or in the eight days of hearing into it.

20Mibro asserts that it understood this Application to relate solely to its implementation of the arbitrator's Award, and that this understanding was consistent with how the applicant's counsel characterized its pith and substance. Alternatively, it submitted that the earliest point at which the applicant (or anyone on her behalf) could be considered to have characterized her layoff as discrimination occurred when she filed her complaint with the Commission in late December 2006, which was well outside any applicable time limit under the Code for making that allegation.

ANALYSIS

21The fact that the Commission has declined to exercise its discretion under the former section 34(1) of the Code to dismiss the complaint which is the subject-matter of this Application does not preclude the Tribunal from engaging in the independent exercise of determining whether it should exercise its discretion to dismiss an application under section 45.1 of the Code. In any event, this point, while raised in the applicant's written submissions, was not pursued in oral submissions.

22Section 45.1 of the Code gives the Tribunal the discretion to dismiss an application "in accordance with its rules" if "another proceeding has appropriately dealt with the substance of the application". Rule 21 of the Tribunal's Rules of Procedure for Transitional Applications relates to section 45.1 requests. The section 45.1 issue is whether the arbitration proceeding dealt appropriately with the substance of this application. I should also note that the Tribunal's case law recognizes that it possesses the jurisdiction to decline to inquire into the merits of an application where it finds that it would be an abuse of process for it to do so.

23What is at stake in this decision is whether the applicant should be permitted at this point to have the Tribunal inquire into the merits of her Application. The focus of her concern as set out in the Application appeared to be her treatment when she returned to work after the Award issued in the summer of 2006. There is, however, some suggestion that the Application is also intended to challenge the same action on Mibro's part that prompted the grievance in 2005 – that is the layoff of the applicant in July 2005. I want to address the aspects of the Application that deal with the applicant's layoff first.

24There are a number of reasons why the Tribunal should not inquire into Mibro's decision to issue a layoff notice to the applicant.

25The first reason is that it would be unfair to Mibro to do so. The applicant simply did not put Mibro on adequate notice that her Application was intended to challenge the way it treated her in 2005. The Application to the Tribunal simply annexed the complaint to the Commission without providing any further particulars. This Application focused on the 2006 events, as reflected by the remedial relief requested. That this was the focus of the Application was confirmed (as set out above) in the written submissions filed by counsel for the applicant in response to Mibro's request for an order for early dismissal. At no time until she made her oral submissions at the CRC, did counsel for the applicant ever suggest that the substance of the Application was about anything other than the implementation of the Award, and specifically the question of the rate paid to the applicant on her return to work. In these circumstances, to permit the applicant to assert clearly for the first time in May 2009 that she is challenging Mibro's decision in June 2005 to lay her off is so unfair in my view that it would amount to an abuse of process. Furthermore, section 53 of the Code provides that the subject matter of a complaint formerly made to the Commission may be the subject of an application to the Tribunal, and Rule 6.3 of the Tribunal's Rules of Procedure precludes the applicant from adding grounds or expanding the subject matter of that complaint.

26Second, the question of the applicability of section 45.1 to the 2005 events only needs to be answered if the applicant was otherwise in a position when she filed her complaint with the Commission to have a complaint respecting those events adjudicated. In my view she was not because the complaint was made too long after the events complained of. Even assuming the applicant's complaint had sufficiently clearly indicated it was intended to challenge her layoff, that complaint was made more than one year after the date of the layoff (and of Mibro's failure to recall her). At that time the complaint was filed, any challenge to Mibro's conduct in 2005 was prima facie untimely under the Code which imposed a six month limitation period from the date of the event complained of. At the time of her Application to the Tribunal the relevant period was 12 months, and the application was also prima facie untimely to the extent it challenged Mibro's conduct in 2005. In either event, there are simply no circumstances pled that might have warranted an extension of the time limit.

27Third, the factual underpinnings of the arbitration proceedings focused on the circumstances surrounding the applicant's layoff, and Mibro's failure to recall her when she was fit to return to work. That was the substance of that proceeding. Those circumstances were explored during eight days of arbitration hearing, which resulted in the Award. Specific findings were made about why the applicant's job classification was eliminated and she was laid off. Those findings are simply inconsistent with an assertion that her layoff (or the failure to recall her in August 2005) was related in any way to her disability or the fact that she had taken medical leave. There are no facts set out in this Application that were not put before the arbitrator. In short, there has been a full adjudicative inquiry into all the relevant facts. Therefore, regardless of the legal theories that were brought to bear on those facts, there is no question that the substance of how Mibro treated the applicant in the summer of 2005 and what should be done about it was dealt with in the Award.

28The substance of any complaint the applicant has about Mibro's actions in 2005 has been dealt with in the grievance proceeding, which is an appropriate forum, involving the same or substantially similar procedural safeguards as those characterizing a hearing before the Tribunal. There has been "a complete airing of the issues within a legal framework". The foregoing observations provide a sufficient basis on which to exercise my discretion pursuant to section 45.1 not to inquire into the 2005 events. In addition, however, and as already noted above, it is my view that it would be unfair to Mibro and constitute an abuse of process to now inquire into the 2005 events because: (1) the applicant's complaint to the Commission was not filed until more than a year after the events in question; (2) the allegations respecting the 2005 events were vague and unparticularized; and (3) the complaint appeared to focus on the way Mibro implemented the Award and the applicant's counsel represented that this was its substance and did not refer to any allegations about 2005 events until making responding oral submissions at the CRC.

29I turn now to the applicant's allegations respecting what Mibro did after the Award issued. She is complaining about the rate at which she was paid once reinstated. The Award contained language (as reproduced earlier in this decision) specifying what her rate was to be. Her complaint may be that the rate specified in the Award should have been different, or it may be that Mibro did not comply with the Award. In either case, those are matters over which the arbitrator had and specifically retained jurisdiction.

30Although Mibro is identified as the responding party in this Application, in reality it seems to be the decision-making of the arbitrator that is being impugned, and the Application amounts to a request that the Tribunal step into his shoes and exercise jurisdiction he possesses. I expressed this view to counsel at the CRC. To applicant's counsel, I specifically put the question of why this aspect of her client's Application (i.e., what happened after the Award issued) should not be dismissed, not on the basis of section 45.1, but on the basis that it constitutes an attempt to have the Tribunal review the arbitrator's decision making. I referred to the Tribunal's case law holding that the decision making of other adjudicative agencies does not constitute a "service" under the Code and is not a matter over which the Tribunal has any jurisdiction. Counsel acknowledged my request but made no submissions on this point.

31My determination is that the essential character of the application insofar as it relates to events that occurred in 2006 is a challenge to the arbitrator's decision-making and/or an attempt to have the Tribunal determine matters over which the arbitrator had or retained jurisdiction. Such complaint is outside the jurisdiction of the Tribunal. The arbitration adjudication process is not a "service" under the Code.

CONCLUSION

32For all of the above reasons, this Application is dismissed.