Theresa McNally v. OPSEU Pension Trust, 2010 HRTO 1929

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Theresa McNally

Applicant

-and-

OPSEU Pension Trust, Sandra Cober and Jessica Chow

Respondents

DECISION

Adjudicator: Brian Sheehan Date: September 22, 2010 Citation: 2010 HRTO 1929 Indexed as: McNally v. OPSEU Pension Trust

APPEARANCES BY

Theresa McNally, Applicant ) Self-represented

OPSEU Pension Trust, ) Sandra Cober and Jessica Chow, ) Ari Kaplan, Counsel Respondents )

ii

INTRODUCTION

1This Application was filed on April 23, 2009 under section 53(5) of the Human Rights Code, R.S.O. 1990 c.H.19, as amended (the “Code”).

2This Decision addresses the respondents’ Request that the Tribunal exercise its discretion under section 45.1 of the Code and dismiss the Application on the basis that the substance of the Application has been dealt with appropriately in another proceeding.

THE APPLICANT’S EMPLOYMENT HISTORY

3The applicant commenced employment with the Ministry of Transportation in 1976 and continues to be employed there. After a workplace injury, she was unable to work on several occasions between 1991 and 1999. Due to her injuries, she never worked more than 18 hours per week after September 1995. Notwithstanding that fact, she was treated as a full-time employee until November 1999 when her employment status was changed to that of a permanent part-time employee.

4Throughout her employment, the applicant has been covered by a collective agreement between the Ontario Public Service Employees Union (“OPSEU”) and her employer.

THE PENSION PLAN

5The applicant is a member of the OPSEU Pension Plan (the “Plan”) which is administered by OPSEU Pension Trust (“OPTrust”), the corporate respondent. The personal respondents are employees of the corporate respondent. The Plan is negotiated pursuant to the bargaining agreement between OPSEU and The Crown in Right of Ontario, in its capacity as the applicant's employer. OPSEU and the government are the sponsors of the Plan and are responsible for its design. OPTrust administers the terms of the Plan as drafted by the sponsors.

6The Plan allows members with disabilities to purchase pension service credits for periods when they are on a leave of absence approved by their employer. The wording of the relevant sections of the Plan is as follows:

7.2 Leave of Absence without Pay

(2) A member who is granted a leave of absence of more than one month without pay because of illness, pregnancy or the adoption of a child may elect to make contributions to the Fund during the leave, in which case the member shall contribute an amount equal to the amount the member would have contributed if the leave had not been granted.

7.4 Purchase of Prior Service

(1) On such terms and conditions as are fixed by the Board and provided that credit shall not be purchased in respect of any period of time for which credit in the Plan has been previously purchased or otherwise provided a member may purchase credit in this Plan...

(f) for a leave of absence without pay for more than a month because of illness, pregnancy or adoption of a child.

THE APPLICANT’S CLAIM OF DISCRIMINATION

7As a result of the change in her employment status to a regular part-time employee in 1999, the applicant’s entitlement to certain health and welfare benefits provided for under the terms of the collective agreement, including pension credits, was reduced.

8It was the position of the applicant that she should still be able to purchase pension credits as if she was a full-time employee. That is, she should be able to purchase pension credits for the difference between her scheduled part-time hours of work and the full-time standard of hours of work for an employee in her position. Her request to purchase those pension credits was rejected by her employer, and the corporate respondent, on the basis that she was not on an approved leave of absence for the purposes of section 7.4 of the Plan.

9The applicant asserted that, by denying her the right to purchase the pension credits in question, she was being subjected to discriminatory treatment. In particular she compared her situation to Plan members on approved leaves of absences due to disability who are able to purchase pension credits for the period of their absence due to their disability.

THE GRIEVANCES

10In 2003 OPSEU filed a grievance on the applicant’s behalf challenging her employer’s decision to proportionally reduce her entitlement to health and welfare benefits provided for under the collective agreement. That grievance was heard by Arbitrator Richard Brown of the Grievance Settlement Board (“GSB”). At the GSB hearing, it was asserted on behalf of the applicant, that her status remained that of a full-time employee. In the alternative, it was submitted that she was entitled to benefit coverage in the same manner as a full-time employee.

11The arbitrator, in an October 16, 2003 decision, ruled that the applicant was properly reclassified as a permanent part-time employee as of November 1999.

12In terms of the nature of her entitlement to health and welfare benefits, the arbitrator gave consideration to the wording of Article 41.4 of the collective agreement which read as follows:

Where an employee receives an award under the Workplace Safety and Insurance Act and the award applies for longer than the period set out in Article 41.2 (i.e. three (3) months), the Employer will continue subsidies for Basic Life, Long Term Income Protection, Supplementary Health and Hospital and Dental Plans for the period during which the employee is receiving the award.

13The arbitrator determined that since the applicant was granted a Future Economic Loss (“FEL”) award by the WSIB, she was entitled to receive the specified health and welfare benefits set out in Article 41.4. He noted, however, that provision did not preclude the employer from reducing some benefits - pension, sick leave, statutory holidays and vacation credits - that the applicant had previously enjoyed. He then went on to consider whether a reduction in those benefits was prohibited by the Code as discrimination based on disability.

14In reaching his decision, the arbitrator extensively relied upon and adopted the reasoning of the Ontario Court of Appeal in Ontario Nurses’ Association v. Orillia Soldiers Memorial Hospital (1999) 1999 CanLII 3687 (ON CA), 169 D.L.R.(4th) 489 (OCA) (“Orillia Soldiers Memorial Hospital”). In that case, the employer paid the full premium costs for health and welfare benefits for active employees, and for the first thirty months for an employee in receipt of long term disability benefits; thereafter the employer made no contribution for health and welfare premiums for employees in receipt of long term disability benefits. In an excerpt of the decision quoted by Arbitrator Brown the Court found the differential treatment experienced by employees on LTD for a period greater than thirty months did not constitute direct discrimination since it was not appropriate to compare for purposes of compensation employees who were actively employed with those who were not. The Court went on to determine that the claim of differential treatment did not constitute constructive discrimination for the purposes of section 11 of the Code since “requiring work in exchange for compensation is a reasonable and bona fide requirement”.

15The arbitrator considered an argument advanced on behalf of the applicant that the decision of the Supreme Court of Canada in British Columbia Government and Service Employees Union v. Public Service Employees Relations Commission, (1999) 1999 CanLII 652 (SCC), 176 D.L.R.(4^th) 1 (“Meiorin”), had thrown into question the continuing significance of the reasoning in Orillia Soldiers Memorial Hospital. On this point, the arbitrator offered the following comments:

In my view, the Supreme Court’s decision in British Columbia Government and Service Employees Union does not put in doubt the basic point made in Orillia Soldiers Memorial Hospital --- there is nothing discriminatory about requiring work in exchange for compensation. Following the Court of Appeal’s lead, I conclude requiring full-time work in exchange for some of the benefits offered only to full-time employees is “a reasonable and bona fide requirement”. I note article 41.4 entitles the grievor to other benefits not available to employees working part-time for reasons other than disability. To this extent, as a disabled employee, she is treated more favorably than others. Accordingly, the facts at hand did not constitute unlawful discrimination on the ground of disability.

16The applicant subsequently filed another grievance reasserting her claim of entitlement to benefit coverage as if she remained a full-time employee. That grievance was also heard by Arbitrator Brown. In summarily dismissing that grievance, he concluded that the union was bound by his earlier decision and was precluded from raising the same argument for a second time.

17The Complaint underlying the Application before me was filed with the Ontario Human Rights Commission (“Commission”) on May 9, 2007.

THE APPLICATION OF THE DOCTRINE OF RES JUDICATA

18Before the Commission the respondents had requested the Commission exercise its discretion pursuant to subsection 34(1)(b) and 34(1)(d) of the Code as then in force and decline to deal with the Complaint. Although Commission staff recommended the complaint not be dealt with on the basis of delay, the Commission declined to exercise its discretion under section 34 and allowed the Complaint to proceed.

19Section 34(1) of the Code before amendments took effect in June 2008 read as follows:

34(1) Where it appears to the Commission that,

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

b) The subject matter of the complaint is trivial, frivolous, vexatious or made in bad faith;

c) The complaint is not within the jurisdiction of the Commission; or

d) Facts upon which the complaint is based occurred more than six months before the complaint was filed, unless the Commission is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay,

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

20The applicant asserted the doctrine of res judicata dictates that the Commission’s decision to reject the respondents’ request to have her Complaint dismissed was binding on this Tribunal. Accordingly, it is submitted the Tribunal should not inquire into the respondents’ section 45.1 argument.

21The Tribunal dealt with the doctrine of res judicata, and the associated concept of issue estoppel, in Snow v. Honda, 2007 HRTO 45 noting at paras 40-41:

There 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 relitigation of only a discrete issue or it may bar the second action in its entirety. (O’Connor, supra at para 24). The second branch of res judicata, known as "cause of action" estoppel, is not raised in this case.

The 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.

22Given the respondents are not asserting that the Application be dismissed on account of delay the manner in which the Commission deposed of the delay issue under the former section 34(1)(d) is, in my view, a moot point.

23Turning to the former section 34(1)(b) the question decided by the Commission under that provision was a vastly different from the question this Tribunal must address with respect to the issue of the application of section 45.1. The relevant question for the Commission at that time was whether the complaint reached the threshold of being trivial, frivolous, or vexatious or was made in bad faith. In Pritchard v. Ontario (Human Rights Commission), 1999 CanLII 15058, the Ontario Superior Court had the following comments regarding the test under section 34(1)(b):

The term “bad faith” normally connotes moral blameworthiness on the part of the person accused, encompassing conduct designed to mislead or pursued for an improper motive. Its use in s. 34(1)(b) suggests that this is the intended meaning in the Code, for a complainant can be denied access to the investigative procedure only if the complaint is vexatious, trivial or brought in bad faith. The terms “bad faith” and “vexatiousness” both indicate that the complainant has acted improperly in pursuing the complaint.

24Accordingly, consideration of 34(1)(b) involved the application of a fairly stringent test requiring a finding of ill intent on the part of the complainant.

25The question under section 45.1 is far different; involving a vastly different framework of analysis. The Tribunal is not required to evaluate the motive of the applicant but rather address a broader and more neutral issue as to whether the substance of the application has been appropriately dealt with in another proceeding. Accordingly, the same legal question was not before the Commission that is before this Tribunal pursuant to section 45.1. Moreover, in my view the Commission’s decision to decline to exercise its discretion under section 34 does not satisfy the requirement of being a final judicial decision.

26I am, therefore, not satisfied that the doctrine of res judicata (issue estoppel) applies in this situation to preclude the Tribunal from inquiring as to whether the matter should be dismissed pursuant to s. 45.1.

SECTION 45.1 ANALYSIS

27Section 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.

28In Campbell v. Toronto District School Board, 2008 HRTO 62, the Tribunal set out the following guiding principles regarding the application of section 45.1:

• Section 45.1 gives expression to a legislative intent to avoid the duplication of proceedings and the re-litigation of issues that have been dealt with elsewhere;

• The discretion given to the Tribunal in section 45.1 is at least as broad as the doctrines of issue estoppel and abuse of process;

• In determining whether another proceeding has appropriately dealt with the substance of the application, the Tribunal should not be overly technical;

• The Tribunal does not act as an appellate court from the decisions of other tribunals, and the Tribunal need not be satisfied that it would have reached the same conclusion as that reached in the other forum.

29The Tribunal has consistently adopted the view that a labour arbitration hearing constitutes a “proceeding” for the purposes of section 45.1 and a hearing before the GSB is a labour arbitration hearing.

30In terms of the second component of section 45.1, as to whether the substance of an application was appropriately dealt with, the Tribunal in Campbell offered the following comments:

These definitions suggest that in considering whether the substance of the complaint has been appropriately dealt with, the Tribunal should consider whether the complaint, in its essence or pith, was dealt with in a manner suitable or proper to that essence or pith....

31The essence of the applicant’s argument is that she was treated in a discriminatory manner because she was not able to purchase pension credits as if she was a full-time employee for the period subsequent to her employment status changing to that of a permanent part-time employee. The claim of discrimination is rooted in an assertion of differential treatment in comparison to full-time employees on a leave of absence due to a disability who are able to purchase pension credits for the period of their leave. Whether that differential treatment constituted discrimination for the purposes of the Code was the precise issue dealt with in the two GSB decisions. In coming to the conclusion that the applicant was not treated in a discriminatory manner, the arbitrator, in those decisions, considered the relevant human rights concepts and canvassed the pertinent jurisprudence, including the decisions in Orillia Soldiers Memorial Hospital, supra, and Meiorin, supra. For the purposes of section 45.1 it is not necessary for the Tribunal to be of view that it would come to the identical conclusion reached by the arbitrator, as long as the relevant human rights principles were appropriately considered.

32The applicant asserted that her Application lies against the respondents and the polices adopted with respect to administering the Plan. It was submitted that since Arbitrator Brown did not have jurisdiction over the respondents, or over the Plan and its administration, the GSB decisions were not relevant to this proceeding. In my view, the applicant’s argument is one of form rather than substance. The employer’s decision not to allow her to purchase pension credits as if she was a full-time employee was based on Article 7.4 of the Plan. The impact of the provisions and policies of the Plan on the applicant were thus part of the relevant factual matrix before the arbitrator as part of the GSB proceedings.

33Moreover, as suggested in Campbell, the Tribunal should not adopt an overly technical approach in applying section 45.1. The relevant issue is whether the “essence” or “pith” of the matters raised in the Application were appropriately dealt with in the prior proceeding. As previously determined, the specific claim of discrimination based on the applicant being treated differentially on account of her disability lies at the heart of this Application and that claim of discrimination was directly dealt with in the GSB decisions of Arbitrator Brown. One of the underlying purposes of section 45.1, to avoid the duplication of proceedings and ensure finality in decision making, would be compromised if this Application were allowed to proceed with the same issues being advanced that were appropriately addressed by the GSB.

CONCLUSION

34In conclusion, the substance of this Application was appropriately dealt with in the decisions of the GSB. Accordingly, the Tribunal exercises its discretion pursuant under section 45.1 and dismisses this Application.