Blanchette v. Ontario (Natural Resources), 2010 HRTO 2280

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

John Blanchette

Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Minister of Natural Resources, Brian Morrison, Mike Kindree and Charlie Tedesco

Respondents

DECISION

Adjudicator: Jennifer Scott

Date: November 17, 2010

Citation: 2010 HRTO 2280

Indexed as: Blanchette v. Ontario (Natural Resources)

AppearanceS BY

John Blanchette, Applicant ) Ian N. McLean, Counsel

Ministry of Natural Resources, Brian Morrison, ) Omar Shahab, Counsel Mike Kindree and Charlie Tedesco, Respondents )

ii

BACKGROUND

1This Application was received by the Tribunal on January 9, 2009 and completed on February 10, 2010 under section 53(5) of the Human Rights Code, R.S.O. 1990, c.H.19, as amended (the “Code”). The applicant alleges discrimination in employment on the basis of family status.

2The respondents have requested early dismissal of the Application on the basis that: (a) the allegations of discrimination were dealt with by the Grievance Settlement Board (“GSB”); or, in the alternative, (b) it would be an abuse of the Tribunal’s process to hear the Application.

3A hearing was held on October 26, 2010 to deal with the respondents’ Request to dismiss the Application.

THE FACTS

4The applicant was employed with the Ministry of Natural Resources (the “Ministry”) in different capacities for a period of over twelve years.

5In November 2004, the applicant was advised that he was the successful candidate for the position of Canine Handler with the Intelligence and Investigations Section, Enforcement Branch of the Ministry. The position was located in Wawa, Ontario and commenced on December 6, 2004.

6Soon after starting the job, the applicant discovered that there were insufficient therapeutic services in Wawa to meet the special needs of his son. The applicant spoke to his manager, Mike Kindree, and advised him that difficulties had arisen regarding the applicant’s ability to move his family to Wawa because of the limited services available for his son.

7From December 2004 to March 2005, the applicant spoke to various Ministry personnel about the difficulties he faced in moving to Wawa. The Ministry consistently took the position that the applicant and his family were required to relocate to Wawa.

8A female Labrador dog was selected to be the applicant’s canine partner. Arrangements were made to spay the dog in Sudbury on April 12, 2005. The applicant was instructed to stay with the dog in Sudbury the evening of the 12th.

9The applicant did not remain in Sudbury with the dog after the surgery on April 12, 2005 and instead, drove with the dog to Mattawa where his family lived. The applicant was suspended for two days: one day for insubordination and one day for attempting to deceive his supervisor about the insubordination.

10On April 14, 2005, the applicant wrote to Mike Kindree and complained that he was being discriminated against by his supervisor Brian Morrison because of his family situation, namely, the special needs of his child. The applicant advised Mr. Kindree that he had inquired into housing, schools, medical and dental services and discovered that Wawa was severely lacking in services for his child’s special needs. Although not expressly stated in his letter, the applicant stated he felt the proper protocol was to address his concerns with his manager first. This protocol follows the government’s Workplace Discrimination Harassment Prevention (“WDHP”) Policy.

11On April 21, 2005, the applicant filed a grievance for his two-day suspension.

12On April 28, 2005, the applicant, Mr. Morrison, Mr. Kindree and John MacDonald met to discuss the applicant’s complaint set out in his letter of April 14, 2005.

13On August 10, 2005, Mr. Kindree wrote to the applicant and advised him that the allegations set out in his April 14, 2005 letter were unfounded as it appeared that many of the issues raised had resulted from miscommunications and assumptions made by the applicant.

14On September 3, 2005, the applicant’s employment was terminated for failing to meet the requirements of his position during the probationary period.

15On September 6, 2006, the applicant grieved the termination of his employment.

16The two grievances were heard together by the GSB. The hearing took place over seven days between April 26, 2006 and January 25, 2007.

17The decision of the GSB was released on March 2, 2007. The GSB upheld the one-day suspension for insubordination and allowed the grievance relating to the second one-day suspension for allegations of deceit.

18With respect to the termination of the applicant’s employment, the GSB held there was no basis to intervene in the Ministry’s decision to release the applicant. It found the position of Canine Handler was very unique in terms of the level of dedication and commitment required of the applicant. The GSB upheld the Ministry’s concern that the applicant’s family was living 600 kilometres away from Wawa. The GSB found it was not irrational or unreasonable for the Ministry to take the position that it was not workable for the applicant to attend call-ins in the Wawa district on his days off when he was in Mattawa. The last paragraph of the decision states:

I believe from the evidence, that some, but not all, of the issues the employer was concerned about stemmed ultimately from the grievor’s attachment to his family, and the difficulty he had relocating his family in Wawa, due to the lack of services for his son. While I sympathize with the difficult position the grievor was faced with, it is not reasonable to state that it was unreasonable or irrational for the employer to consider the impact of that on the workplace.

19On April 18, 2007, the applicant requested a review of his 2005 WDHP complaint. A written complaint was requested from the applicant, but was not provided.

20On May 15, 2007, the WDHP Coordinator for the Ministry advised the applicant that his allegations of discrimination on the basis of family status had been addressed by Mr. Kindree and the file was closed.

21On June 5, 2007, the applicant filed his complaint with the Ontario Human Rights Commission, twenty-one months after the termination of his employment.

ANALYSIS

22The respondents submit the Application should be dismissed under section 45.1 of the Code because the applicant’s complaint was appropriately dealt with by the GSB, or alternatively, it would be an abuse of the Tribunal’s process to hear the Application.

Section 45.1

23The respondents submit the GSB appropriately dealt with the applicant’s human rights complaint and as such, the Application should not be heard by the Tribunal. They rely on section 45.1 of the Code which 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.

24There is no evidence before me that the applicant raised his complaint of discrimination on the basis of family status with the GSB. It is unclear to me why the applicant did not assert his human rights when the issue before the GSB was his suitability for the Canine Handler position which raised directly his ability to live in Wawa given the lack of services for his son’s special needs. As his family status complaint was not raised by the applicant nor considered by the GSB, I cannot conclude his Application was appropriately dealt with by the GSB.

Abuse of Process

25The failure of the applicant to assert his human rights before the GSB raises the question as to whether it is an abuse of process for the applicant to refrain from making certain arguments in one forum (the GSB) in order to be able to make them later in a different forum (the Tribunal).

26In Snow v. Honda of Canada Manufacturing, 2007 HRTO 45, the Tribunal summarized some of the principles that apply when considering the doctrine of abuse of process:

• Tribunals have the jurisdiction to stay or dismiss complaints if to proceed would amount to an abuse of process;

• The doctrine of abuse of process is appropriately used to preclude relitigation in circumstances 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.

27The respondents argue that because the applicant did not explicitly raise family status in his grievances, to allow the Application to go forward would constitute an abuse of process. They rely on the Tribunal’s decision in Manhas v. A.O. Smith Enterprise Ltd. 2010 HRTO 659 where the Tribunal states at paragraph 20:

Although I cannot conclude that the arbitrator dealt with any claims of discrimination under section 45.1, I am satisfied that there were no facts set out in this Application that were not put before the arbitrator and that there was a full inquiry into all the relevant facts. Therefore, allowing the Application to proceed would necessarily involve the re-litigation of the issue decided by the arbitrator. In my view, to do so would violate the principles of judicial economy and the integrity of the administration of justice and amount to an abuse of process.

28The applicant filed and pursued a grievance before the GSB in which he argued the Ministry’s actions in terminating his employment were unreasonable. One of the grounds relied upon by the applicant, among others, related to the Ministry’s requirement that he and his family live in Wawa. There is no evidence before me that the applicant argued this requirement discriminated against him on the basis of his family status. Instead, the applicant made other arguments relating to the residential requirement including: (a) he had moved his family to Mattawa which was closer to Wawa than Cochrane (their prior residence); (b) he still intended to move his family to Wawa; (c) he could not move his family to Wawa until the renovations were completed on the Mattawa home and it could be sold; and (d) he could still respond to call-outs from Mattawa.

29The issue before the GSB was the reasonableness of the Ministry’s actions. Actions that violate the Code are by definition unreasonable. The failure of the applicant to raise his human rights when dealing with the reasonableness of the Ministry’s requirement that he and his family live in Wawa, when services were not available there to meet his son’s special needs, is inexplicable. In my view, it is an abuse of process for the applicant to argue before the GSB that an action (the residential requirement) is unreasonable, without raising unreasonableness because of a Code violation, and then pursue the Code violation before the Tribunal. This goes to the very heart of the abuse of process doctrine.

30Finally, and although not argued before me, I would note that the applicant’s human rights complaint is out of time. Section 34 of the Code requires that an application be filed within one year of the incident being complained about. In this case, the applicant filed his complaint twenty-one months after the termination of his employment, well beyond the limitation period set out in the Code. See Boncori v. TRW Canada, 2009 HRTO 564.

31Under section 34(2) of the Code, an application may be made more than one year after the incident if the delay in filing the application was made in good faith. There is no explanation for the applicant’s delay. I can only presume it was incurred because he was awaiting the outcome of the GSB proceeding before pursuing his rights under the Code. This does not constitute a valid explanation for the delay within the meaning of section 34(2). See Cartier v. Northeast Mental Health Centre, 2009 HRTO 1670.

32I find it would be an abuse of the Tribunal’s processes to hear this Application. The administration of justice requires judicial economy, finality and consistency in judicial processes. It would be contrary to these principles to allow the Application to proceed when there were seven hearing days before the GSB dealing with the exact same facts that give rise to the applicant’s human rights complaint. This would necessarily involve a relitigation of the issues before the GSB. While I have great sympathy for the applicant’s complaint, it is an abuse of process to compartmentalize that complaint into several different processes and to await the outcome of each proceeding before continuing on with the next. To allow this approach would never result in any finality for the Ministry.

33For these reasons, the Application is dismissed.