Rodriques v. Toronto Community Housing, 2010 HRTO 258

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Paul Rodriques Applicant

-and-

Toronto Community Housing, Mary Richardson and Ed Vergara Respondents

AND B E T W E E N:

Paul Rodriques Applicant

-and-

Canadian Union of Public Employees, Local 416, Brian Cochrane, Ed Vergara and Ron Johnson Respondents

INTERIM DECISION

Adjudicator: Judith Hinchman Date: February 4, 2010 Citation: 2010 HRTO 258 Indexed as: Rodriques v. Toronto Community Housing

APPEARANCES by

Paul Rodriques, Applicant ) Glen Morrison, Counsel

Toronto Community Housing, Mary Richardson and Ed Vergara, Respondents ) William LeMay, Counsel

Canadian Union of Public Employees, Local 416, Brian Cochrane, Ed Vergara and Ron Johnson, Respondents ) David Watson, Counsel

INTRODUCTION

1The applicant filed two complaints dated April 11 and 26, 2008 (the “Complaints”) with the Ontario Human Rights Commission (the “Commission”) alleging a breach of the Human Rights Code R.S.O. 1990, c. H.19, as amended (the “Code”) by the respondents. The applicant abandoned the Complaints and filed these Applications (the “Applications”) with the Human Rights Tribunal of Ontario (the “Tribunal”) pursuant to s. 53(5) of Part VI of the Code. The Applications are being processed together. The Application against Toronto Community Housing Corporation (“TCHC”) alleges discrimination and harassment on the basis of disability in employment and reprisal. The Application against Canadian Union of Public Employees, Local 416 (“CUPE, Local 416”) alleges discrimination and harassment on the basis of disability in vocational association.

2This Interim Decision addresses respondents’ Request (the “Request”) to dismiss the Applications under section 45.1 of the Code as matters that have been appropriately dealt with in another proceeding.

NATURE OF THE DISPUTE

3The applicant began his employment with the Metropolitan Toronto Housing Authority (“MTHA”) in 1991. He worked as a General Maintenance Mechanic responsible for maintenance, cleaning, and related activities. In 2002, MTHA merged with Toronto Housing Company to form TCHC.

4Prior to 2002, the applicant advised his employer that he required accommodation as a result of problems with chemical fumes. On November 28, 2002, his doctor advised that due to multiple chemical sensitivity (“MCS”), the applicant needed to be accommodated by working outside. A meeting was held on December 10, 2002 and the applicant and his employer agreed to an arrangement that included both indoor and outdoor assignments. This arrangement continued without incident until 2006.

5In May 2006, the applicant’s position was moved to a new location, the “Empiringham site.” At the same time his job position was changed to Custodial Maintenance Person 2. Most of the job duties for this position required working inside.

6In the summer of 2006 and April 2007, the applicant raised the issue of smoking in the workplace. An investigation by Toronto Public Health determined that the applicant’s superintendent was smoking in the superintendent’s office on at least one occasion. The superintendent was warned.

7Between June and July 2007, the applicant was often absent from work and between August 7, 2007 and January 21, 2009, absent continuously. On October 16, 2007, the applicant provided medical notes for some of the absences as well as a note from his doctor stating that he required a totally smoke and chemical free work environment. Furthermore, he advised his employer that he was being referred to a specialist.

8The employer and the applicant continued to communicate, however, disagreed pertaining to additional information that the employer asked for regarding the applicant’s medical restrictions. The parties agreed to refer these disputes to arbitration. And thereafter the respondent Union, CUPE Local 416, brought a grievance on behalf of the applicant. The issues in dispute were the applicant’s absence from work between August 7, 2007 and January 21, 2009 and whether or not the employer had failed to or was unable to accommodate his MCS during that period.

9On June, 2009, Arbitrator Mary Lou Tims released her decision. In making its Request, the respondents’ position is that the subject matter of the Applications has been dealt with by the Arbitrator in that she explicitly considered the same discrimination issues alleged in these Applications.

10The applicant disagrees that the Arbitrator’s decision appropriately dealt with the issues raised in these Applications.

11The parties were given the opportunity to make oral submissions on whether the Tribunal should exercise its discretion under section 45.1 of the Code to dismiss the present Applications, in whole or in part, on the ground that the substance of these Applications has been appropriately dealt with in the arbitration proceedings decided in June 2009.

SECTION 45.1

12Section 45.1 of the Code provides:

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.

13It 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. See Robinson v. Spanish (Town), 2009 HRTO 1484.

14In Campbell v. Toronto District School Board, 2008 HRTO 62, the Tribunal discussed some of the principles that apply to the interpretation of s. 45.1, which include:

• 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 s. 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 was reached in the other forum.

15Applying Campbell, supra, the Tribunal in Dunn v. Sault Ste. Marie (City), 2008 HRTO 149, stated that other relevant factors are the purpose of the statutory scheme governing the other proceeding, whether the same question was decided, whether human rights principles were applied, and the safeguards available to the parties in the other administrative proceeding.

ANALYSIS

16The Tribunal has found a union grievance to be a “proceeding” within the meaning of s. 45.1 of the Code. See Virgin v. Dollar, 2009 HRTO 899, Van Barneveld v. I.O.O.F. Seniors Homes, 2009 HRTO 448. In Blackman v. Ontario (Community Safety and Correctional Services), 2009 HRTO 970, the Tribunal referred to the fact that 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 and other employment-related 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).

17I am satisfied that the grievance and arbitration was a proceeding for the purposes of s. 45.1.

Was the subject matter of these Applications appropriately dealt with by Arbitrator Tims?

18The underlying Complaints both alleged Code violations regarding whether or not the employer failed to accommodate the applicant’s MCS and whether the union shared liability for that alleged failure, based on the applicant’s exposure to smoking inside the building where the applicant worked after his transfer to the Empiringham site. The applicant alleges that he complained to both his employer and the union in June 2006 and that they did not take appropriate action or accommodate his disability by providing him an appropriate smoke-free environment. It is not disputed that in April 2007 the applicant contacted Toronto Public Health to lodge a complaint about his superintendent’s smoking in the workplace. The applicant alleges that as a result of that complaint, he then became the victim of innumerable acts of harassment by the superintendent that both the union and his employer failed to address. The applicant also alleges reprisal by his employer.

1. Accommodation issues

18At the arbitration, the parties filed an Agreed Statement of Facts that attached the Complaints as exhibits. In her reasons, Arbitrator Tims considered the allegations of smoking and other allegations related to whether or not the applicant’s other chemical sensitivities were accommodated. Arbitrator Tims found that

the failure of the Employer to return the griever to a smoke and chemical free environment in October 2007 as it had done prior to his absence amounted to an unexplained failure to accommodate him as required.

She awarded the applicant compensation from the period of October 17, 2007 up to January 17, 2008. The Arbitrator found that after January 17, 2008 the circumstances changed and the employer was not liable beyond this point for failure to accommodate.

19Specifically with respect to the issue of exposure to second hand smoke, the arbitrator considered the fact that in a January 18, 2008 letter to the employer, the applicant’s physician stated that he understood the issue of cigarette smoke exposure was unresolved. Arbitrator Tims found to the contrary and concluded that, following the Toronto Public Health investigation in April 2007, and at least after October 2007, there was no evidence of the superintendent smoking in workplace.

20After considering the parties’ submissions and the Arbitrator’s decision, I am satisfied that Arbitrator Tims fully addressed the issue of accommodation for the applicant’s MCS including a smoke free workplace. Both the Applications and the grievance arise from the same facts, human rights principles were applied by Arbitrator Tims, and she dealt with the accommodation issue. I find therefore that the issue of accommodating the applicant’s disability was appropriately dealt with in the other proceeding. I note that in so finding I do not need to be satisfied that I would have come to the same conclusion as Arbitrator Tims. Pursuant to Code s. 45.1, the Tribunal exercises it discretion to dismiss this portion of these Applications. This decision is in keeping with the legislative intent to avoid the duplication of proceedings and the re-litigation of issues as expressed by section 45.1.

2. Harassment and reprisal issues

21The Arbitrator did not discuss or make any findings with respect to the applicant’s allegations that the superintendent harassed him repeatedly after the applicant reported the superintendent to Toronto Public Health in April 2007. Nor did she deal with his allegation that he brought the harassment to the attention of both TCHC and CUPE, Local 416 and neither investigated or addressed that situation. I am not satisfied the Arbitrator considered either the harassment or the reprisal claims. Therefore, those issues have not been appropriately dealt with within the meaning of section 45.1.

ORDER

22The respondents’ Request to dismiss the Applications is granted in part. A hearing shall be scheduled by the Registrar-Transition to consider the harassment and reprisal claims.