Benqi Wei v. Seneca College of Applied Arts and Technology and Don Forster, 2010 HRTO 2046

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Benqi Wei

Applicant

-and-

Seneca College of Applied Arts and Technology and Don Forster

Respondents

decision

Adjudicator: Ena Chadha

Date: October 7, 2010

Citation: 2010 HRTO 2046

Indexed as: Wei v. Seneca College of Applied Arts and Technology

WRITTEN SUBMISSIONS BY

Benqi Wei, Applicant ) Self-represented

Seneca College of Applied Arts and Technology ) Ann Burke, Counsel

and Don Forster, Respondents )

1The applicant filed an Application under s. 53(5) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) on June 20, 2009. The applicant alleges discrimination with respect to employment on the basis of disability, ancestry, place of origin, ethnic origin and race.

2The allegations contained in the Application all arise out of workplace disputes between the applicant and the respondents. These disputes gave rise to seven grievances which were heard over the course of eighteen days by a board of arbitration chaired by Robert Howe. Eleven witnesses, including the applicant’s physician, testified in the arbitration proceeding and a lengthy Board of Arbitration Decision (“Arbitration Decision”) was rendered on February 10, 2010.

3On March 25, 2010, the respondents filed a Request that the Tribunal dismiss the Application pursuant to section 45.1 of the Code on the basis that another proceeding has appropriately dealt with the subject-matter of the Application.

4The Tribunal has received and carefully reviewed the respondents’ written submissions of April 21, 2010 and July 6, 2010 and the applicant’s written submissions of June 25, 2010 and July 10, 2010.

5By letters, dated August 17, 2010 and September 15, 2010, the parties waived their right to make oral submissions and confirmed that they relied upon their written submissions with respect to the section 45.1 issue.

BACKGROUND

6The applicant alleges that the respondents subjected him to harassment and discrimination, starting in August 2006, in the form of unequal work, unfair treatment regarding equipment usage, undue discipline, provision of inadequate of training, over scrutiny of medical notes and failure to accommodate his disability.

7The respondents submit that the Application and Arbitration Decision arise from the same facts and that the human rights allegations constitute the substance of the applicant’s grievances. The respondents submit that the human rights issues were central to the arbitration proceeding. The respondents point out that the Arbitration Decision noted that the applicant, himself, acknowledged that the human rights allegations and grievances were “mostly similar”. The respondents submit that the human rights issues were appropriately dealt with by the Arbitration Decision, which rejected the applicant’s allegations.

8The applicant submits that he is “not satisfied” with the arbitrator’s decision and does not accept the decision because the arbitrator disregarded the “true facts” of his case and made errors in the decision. The applicant submits that the arbitrator erred in believing the testimony of the personal respondent over his evidence which he claims was not contradicted. The applicant points out that one member of the Board of Arbitration dissented with respect to finding that a penalty imposed by the employer exceeded the alleged misconduct. The bulk of the applicant’s written submissions argue the merits of his allegations underlying his Application and grievances.

DECISION

9Section 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.

10The Tribunal has interpreted section 45.1 of the Code as requiring consideration of a two-part test: (1) whether there was another “proceeding”, and (2) if so, whether the proceeding “appropriately dealt with” the substance of the Application. The Tribunal’s jurisprudence has explained that 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. See Campbell v. Toronto District School Board, 2008 HRTO 62.

11I am satisfied that a hearing conducted by the Board of Arbitration is a proceeding for the purposes of section 45.1 of the Code. The Supreme Court of Canada has affirmed that grievance arbitrators have not only the power but also the responsibility to implement and enforce the substantive rights and obligations of human rights statutes as if they were part of the collective agreement (Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42).

12With regard to whether the other proceeding “appropriately dealt with” the substance of the application, 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: Keeling v. General Motors of Canada Ltd., 2009 HRTO 1110. The principal concern relates to whether or not 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: Haykin v. Roth, 2009 HRTO 2017.

13Based on my review of the Arbitration Decision and the parties’ submissions, there is no doubt that allegations raised in the Application were the same as those considered in the arbitration proceeding. This has been acknowledged by the applicant, who essentially debates the conclusions reached in the Arbitration Decision. Each of the applicant’s claims of unequal work, unfair treatment regarding equipment usage, undue discipline, provision of inadequate of training, over scrutiny of medical notes and failure to accommodate his disability were considered and determined in the Arbitration Decision. The Arbitration Decision found:

…on the totality of the evidence that those allegations are not borne out by the facts and circumstances of case. Although we have no doubt that the [applicant] honestly believes that [the respondents] were harassing him and treating him in a discriminatory manner, the preponderance of the evidence before us in these proceedings clearly establishes that [the respondents] were merely seeking to duly manage the [applicant’s] job performance, so as to ensure that he performed his job properly, with due regard for safety considerations.

It is noteworthy that a significant portion of the Arbitration Decision canvasses the applicant’s medical history and the medical evidence in the context of considering the employer’s obligation to provide accommodation.

14It is also important that when the Tribunal considers whether another proceeding applied the relevant human rights principles that it does not, as stated in Rao v. McMaster University, 2010 HRTO 1051 and Trozzi v. College of Nurses of Ontario, 2010 HRTO 1892, go so far as to consider whether the conclusion reached by the other proceeding upon application of those principles and law is correct or reasonable as this would effectively serve as an appeal. In my view, the Arbitration Decision appropriately assessed the applicant’s human rights claims and determined that the applicant’s discrimination and harassment allegations were not proven.

15For the purposes of section 45.1, I find that nothing turns on the fact that one member of the Board of Arbitration arrived at a different conclusion with respect to one aspect of the applicant’s grievances regarding the severity of discipline. That member clearly expressed her agreement with the bulk of the majority’s findings and found the applicant to have engaged in culpable behaviour and infractions attracting some discipline. It is apparent that the applicant had full opportunity to present, argue and have adequate consideration of his human rights allegations.

16I find that the substance of the human rights allegations and human rights principles raised in the Application were appropriately dealt with in the arbitration proceedings and by the Arbitration Decision within the meaning of section 45.1 of the Code. As such, the request for dismissal under section 45.1 is granted.

17The Application is dismissed.