Dunbar v. Haley Industries Limited, 2010 HRTO 272

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Raymond Dunbar Applicant

-and-

Haley Industries Limited / Magellan Aerospace Corporation, Ron Brazeau and Jim Lemenchick Respondents

-and-

United Steelworkers, Local 4820 Intervenor

Decision

Adjudicator: Faisal Bhabha Date: February 6, 2010 Citation: 2010 HRTO 272 Indexed as: Dunbar v. Haley Industries Limited

1This is an Application filed November 28, 2008 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the "Code"), alleging discrimination in employment on the basis of disability. The respondents deny the allegations.

2The respondents filed a Request for Order During Proceedings (RFOP) seeking dismissal of the Application on the basis of section 45.1 of the Code, which provides the Tribunal the discretion to dismiss an Application, in whole or in part, where the substance of the Application has been "appropriately dealt with" in another proceeding. The parties attempted mediation without reaching a resolution, and the matter was scheduled for hearing on January 28 and 29, 2009.

3In a pre-hearing Case Assessment Direction, I directed the parties to be prepared to make oral submissions on the section 45.1 issue at the outset of the hearing on January 28, 2010, at which point I heard submissions from the parties and the intervenor.

4In an oral ruling, with reasons to follow, I decided that the substance of the Application has been appropriately dealt with in another proceeding. As a result, the Application was dismissed and the second day of hearing was cancelled. The following are my reasons for the Decision.

FACTUAL BACKGROUND

5The applicant was employed by the corporate respondent as a Fettler from May 2005 until May 2008. He was a member of the Steelworkers union, which is an intervenor in these proceedings. He suffered a workplace injury in January 2007, which strained his right shoulder and worsened over time. The pain began to affect his ability to do his job. He sought treatment with the company doctor and his family physician. The applicant waited until March 2007 to file an accident report. As a result of the delay, the Workplace Safety Insurance Board denied his claim, which he ultimately appealed unsuccessfully to the Workplace Safety Insurance Tribunal (WSIAT). The Application contains some reference to alleged lack of cooperation by the respondent in facilitating the applicant's WSIB application, which the respondent strongly denies.

6In December 2007, the applicant requested workplace accommodation related to restrictions arising out of his January 2007 injury. The request was handled by a union-management committee known as the Joint Accommodations Committee, which resulted in his being placed in the position of Small Core Blower. This arrangement continued for approximately six weeks, when the corporate respondent discontinued it, citing "abysmal production levels and excessive scrap rate".

7On February 4, 2008, the applicant submitted new medical information with revised physical limitations. The corporate respondent offered the applicant accommodation in his former Fettler position with modifications. After less than a week, however, the corporate respondent discontinued the arrangement citing poor performance, the applicant's failure to remain at his work station and excessive breaks. The applicant's last day of work was February 19, 2008.

8At this time, the corporate respondent determined that accommodating the applicant on the job was not possible and provided him with forms to apply for short-term disability benefits ("STD"). The applicant applied, but his claim was rejected by the insurer in March 2008 on the basis that he was not being treated by a physician, no referrals had been made to a specialist and he was not undergoing any physiotherapy treatment to assist recovery.

9During March and April 2008, the corporate respondent requested on multiple occasions that the applicant provide updated medical information so it could determine whether the applicant's absence from work was justified. The corporate respondent was not satisfied with the documentation provided by the applicant.

10On May 28, 2008, the corporate respondent delivered a termination letter to the applicant, citing just cause for termination on the following grounds: failure to provide sufficient medical information to justify his absence from work; failure to take any steps to facilitate his return to work; and engaging in outside work activities which were inconsistent with the physical work restrictions he had represented to the company. This last allegation related to video surveillance evidence the corporate respondent had gathered that apparently showed the applicant engaging in physically strenuous work on a boat.

11The union grieved the termination and the matter was referred to arbitration, heard by Arbitrator Louis Tenace on September 8, 2008 and November 7, 2008. In his decision dated March 10, 2009, the arbitrator found in favour of the corporate respondent and upheld the termination as just.

12The applicant had outstanding issues dating from 2007, which are raised in the Application, relating to the denial of his application to WSIB and to an instance of discipline for insubordination. He submits he raised his concerns with his union, but that the union abandoned the issues without due consideration.

13On December 3, 2008, the applicant filed a "duty of fair representation" application against his union, pursuant to s. 74 of the Labour Relations Act, 1995, S.O. 1995, c. 1 Sched. A., as amended, at the Ontario Labour Relations Board (OLRB). That complaint was dismissed by the OLRB by way of a decision dated June 26, 2009. The applicant did not name the union as a respondent in his Application to this Tribunal.

THE PARTIES' POSITIONS

14In the Application, the applicant alleges that he was discriminated against and harassed at work following a workplace injury that left him with problems in his right shoulder, and that the respondents failed to provide appropriate accommodation in the form of job modifications and ultimately terminated him discriminatorily after refusing to properly accommodate him.

15While the applicant acknowledged that the arbitral decision addresses the "justness" of the termination, he argued that the arbitrator failed to fully consider whether the termination constituted discrimination under the Code. He submitted that, to date, there has not been a full opportunity for him to present his case of disability discrimination. He maintains that at the arbitration, the union failed to properly argue his case, which led to an inadequate hearing and an erroneous result.

16The union intervenor argued that the substance of the applicant's allegations had also been canvassed in his application to the OLRB, in which he implicated the union in his allegations of discriminatory treatment. While the union is not a party to these proceedings, counsel urged me to note that any of the direct or implied allegations of union misconduct were resolved when the OLRB dismissed the applicant's complaint.

17The arbitral decision does not refer to the Code explicitly. The respondents and intervenor, however, argued that the arbitrator fully canvassed the history of the applicant's injury and the corporate respondent's attempts to accommodate him. The arbitrator concluded that the corporate respondent was justified in terminating the applicant's employment after making legitimate attempts to accommodate him on two occasions with no success. The respondents submitted that not only does the arbitrator's decision directly address the duty to accommodate, but that it implicitly addresses the question of discrimination. A termination cannot be just if there was any discriminatory element to it.

ANALYSIS AND DECISION

18Section 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.

19Dismissal under section 45.1 is a discretionary remedy. In deciding whether to exercise my discretionary powers, it is worth noting some foundational principles. The Code is an important public policy statute, protecting rights which are quasi-constitutional in nature. Those rights would be meaningless without access to a mechanism for their enforcement. At the same time, responsibility for the administration of justice and the enforcement of legal rights in Ontario is spread across an array of courts and tribunals. There are strong public policy reasons for avoiding duplication in the adjudication of cases raising substantially the same issues in multiple forums. In deciding whether to dismiss the applicant's case, I am therefore mindful of the important balancing of interests between ensuring access to justice and avoiding the abuse of the Tribunal's process.

20In Campbell v. Toronto District School Board, 2008 HRTO 62, the Tribunal discussed some principles that apply to the interpretation of s. 45.1. They 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 reached in the other forum.

21In applying section 45.1, the principal concern is not whether there has been related or parallel litigation, but whether the other proceeding has appropriately dealt with the substance of the Application. In this regard, the Tribunal will consider whether the applicant has already had a full and fair opportunity to have the allegations of discrimination considered by an adjudicator who had the jurisdiction to interpret and apply the Code. Again, the test is not whether the union properly represented the applicant's case, but rather whether the arbitrator had the jurisdiction and the opportunity to review the bulk of the evidence necessary to make a finding of discrimination.

22There is no question that arbitrators appointed pursuant to the Labour Relations Act, 1995, S.O. 1995, c. 1 Sched. A., as amended have jurisdiction to apply the Code and that a grievance hearing constitutes a proceeding for the purposes of section 45.1 of the Code. The question, then, is whether the issues raised in the Application were appropriately dealt with by the arbitrator.

23It is clear to me that the central issue in both proceedings is the duty to accommodate the applicant's restrictions during employment and the termination of his employment. While the arbitrator does not refer to the Code explicitly, he does consider whether appropriate accommodations were in place. He found the applicant at least partly responsible for the failure of the accommodation arrangements, concluding that he was less than forthright about his needs and restrictions, was not helpful in terms of providing necessary medical documentation, and that the employer did its best given the lack of cooperation by the applicant.

24In Noble v. York University, 2009 HRTO 1201, the Tribunal found that the failure to refer explicitly to a violation of the Code does not automatically mean that section 45.1 does not apply. Section 45.1 requires more than a review of the form of the other proceeding and requires instead that the Tribunal look to the substance of the matters addressed.

25I find that, while the arbitrator does not make specific reference to the Code, he conducted the type of analysis contemplated by the Code and fully considered the applicant's evidence, including testimony by the applicant's physician. Although the arbitrator did not specifically decide each of the allegations made in the Application, such as the claim that the employer did not support the applicant's WSIB claim or that it improperly disciplined him for insubordination, in reviewing the respondent's actions as a whole following the applicant's injury, I am satisfied that the arbitrator dealt with the "substance of the application" within the meaning of section 45.1.

26The question before the arbitrator was whether the applicant's termination was just, which is not the exact question raised by the Application. However, as I have explained, the question at issue need not be a perfect match, as long as the substance—the essential nature of the complaint—was considered and addressed. In my view, the arbitrator has appropriately dealt with the human rights issues raised in both the grievance and the Application.

27No doubt the applicant feels dissatisfied with the results of the arbitration proceeding and continues to believe that the termination of his employment was unfair. While that may be, the applicant is seeking to re-litigate a case which has already been determined. Even if I agreed with him that the other proceeding reached the wrong conclusion, I would not be persuaded to continue to hear his case. The Tribunal is not an appellate body and there is good reason, both at law and in public policy, to avoid duplicate litigation. The function of section 45.1 of the Code is specifically designed to ensure such situations are avoided.

28The Application is dismissed.