Satnam Manhas v. A.O. Smith Enterprises Ltd., 2010 HRTO 659

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Satnam Manhas

Applicant

-and-

A.O. Smith Enterprises Ltd.

Respondent

-and-

United Steelworkers, Local 3789

Intervenor

DECISION

Adjudicator: Janice Sandomirsky

Date: March 26, 2010

Citation: 2010 HRTO 659

Indexed as: Manhas v. A.O. Smith Enterprises

appearances BY

Satnam Manhas, Applicant ) Alan Turner, ) Representative

A.O. Smith Enterprises Ltd., ) John W. Saunders, Counsel Respondent )

United Steelworkers, Local 3789, ) Mark Rowlinson, Intervenor ) Counsel

1This Decision addresses the respondents’ Request for an Order during Proceedings seeking early dismissal of the Application pursuant to section 45.1 of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”) on the basis that the substance of the Application has been appropriately dealt with in an arbitration proceeding. The parties filed written submissions and also made oral submissions at a preliminary issue hearing held on January 28, 2010.

2At the outset of the hearing, the respondents advised that the correct name of the corporate respondent, identified as G.S.W. Water Heating in the complaint, is “A.O. Smith Enterprises Ltd.” The respondents also requested that the personal respondent named by the applicant be removed. In support of this request, the respondents noted the following: the Application did not identify any allegations of conduct outside the scope of the personal respondent’s duties; there were no remedies being sought against the personal respondent; and the corporate respondent accepted it was vicariously liable for any actions of the personal respondent. After some discussion, the applicant consented to the request for the removal of the personal respondent. The style of cause is amended to reflect both these changes.

BACKGROUND

3The Application relates to a complaint filed with the Human Rights Commission on June 12, 2007, alleging discrimination in employment on the basis of disability. The complaint stated the following: the applicant was injured at work on March 17, 2006; he was terminated on April 21, 2006, while on modified duties; the applicant believes his employment was terminated as a direct result of his work related injury and that the employer “discriminated against me as it appears injured employees are treated differently and that G.S.W. has a record of treating injured workers inappropriately.”

4The Response outlined that the applicant was terminated for breaking workplace rules. In August 2005, he was given a one-day suspension for smoking in the workplace in breach of the respondent’s non-smoking policy. In January 2006, he was given a three day suspension for smoking in the workplace. After a number of other incidents in April and May 2006, the applicant was terminated for violating the plant rules.

5The applicant’s union, the intervenor in this Application, grieved the applicant’s termination. The applicant was reinstated and remained at work under the Justice and Dignity provision of the collective agreement pending the outcome of the grievance procedure and arbitration. During this period, there were further issues about violations of workplace policy. All these instances related to late arrival at work and absences without proper notice to the employer.

6The arbitration hearing was held on March 1, 2007. At the hearing, the applicant stated that he could produce documentation disputing the employer’s claim that he failed to provide proper notice of his absences and late arrivals to work during the period he was reinstated under the Justice and Dignity provision. The arbitrator allowed the applicant to submit that material after the hearing. On April 12, 2007, the arbitrator issued a bottom line decision dismissing the grievance and the applicant was again terminated effective that date. The arbitrator issued his written award on June 21, 2007. The arbitrator did not address any alleged human rights violations as none were raised during the course of the proceedings.

7The applicant filed a Duty of Fair Representation application against the union on June 8, 2007, under s. 74 of the Labour Relations Act, 1995, S.O. 1995, c.1, Sched. A, as amended (“LRA”). This application was dismissed in a decision of the Ontario Labour Relations Board December 13, 2007, for failure to disclose a prima facie case. In her decision, the Vice-chair noted the union’s submission that

the applicant at no time requested that the union file a grievance asserting that any action taken by the employer contravened the employer’s duty to accommodate the applicant or that any disciplinary action taken by the employer was either discriminatory or taken in reprisal for the applicant’s assertion of his rights as a disabled worker.

8As noted above, the applicant filed his complaint with the Human Rights Commission on June 12, 2007.

9The applicant also asked the union to judicially review the arbitration award. The request was reviewed by the union’s legal counsel and it was determined that judicial review was not likely to succeed.

REQUEST TO DISMISS UNDER SECTION 45.1

10Section 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.

11The Tribunal has considered section 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: Campbell v. Toronto District School Board, 2008 HRTO 62.

12There is no issue that a labour arbitration under a collective agreement is a “proceeding” within the meaning of section 45.1: Boncori v. TRW Canada Ltd., 2008 HRTO 178.

13In considering the question of whether the other proceeding “appropriately dealt with the substance of the application”, the Tribunal looks at 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 essentially the same, and whether the matter raised was “appropriately dealt with” in the other proceeding: see Boncori, supra.

14Prior to the recent amendments to the Code, the Commission had the power to decide not to deal with a complaint if it could or should be more appropriately dealt with in another proceeding. Section 45.1, on the other hand, only gives the Tribunal the power to dismiss if another proceeding has appropriately dealt with the substance of the application: Asiamah v. Olymel S.E.S./L.P., 2009 HRTO 1750.

15In this case, the human rights complaint arose out of the same facts that were considered in the arbitration proceeding. The arbitration decision noted the fact that the applicant had a workplace injury and was accommodated in different positions within the workplace. The respondent and intervenor submitted that there were references to the worker’s disability and his accommodation at work throughout the arbitration process. However, there were no allegations of discrimination on the basis of a disability before the arbitrator.

16As a result, while the arbitrator had the jurisdiction under the LRA and the collective agreement to deal with allegations of discrimination, and could have dealt with the issue in the arbitration proceeding, he did not consider this issue because it was not raised in that proceeding. Therefore, I cannot conclude that the arbitration “has appropriately dealt with the substance of the application” before the Tribunal. As such, there is no proper basis to dismiss these allegations pursuant to s. 45.1 of the Code.

ABUSE OF PROCESS

17The Tribunal has the jurisdiction to dismiss an application where to proceed would be an abuse of process. This discretionary power is confirmed by section 23(1) of the Statutory Powers Procedures Act, R.S.O. 1990, c. S.22, as amended, which provides that “a tribunal may make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes.”

18As noted in the Supreme Court of Canada decision in Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44 (Can Lll) and referred to in Campbell supra,

The law rightly seeks a finality to litigation. To advance that objective, it requires litigants to put their best foot forward to establish the truth of their allegations when first called upon to do so. A litigant, to use the vernacular, is only entitled one bite at the cherry … An issue, once decided, should not generally be re-litigated to the benefit of the losing party and the harassment of the winner. A person should only be vexed once in the same cause. Duplicative litigation, potential inconsistent results, undue cost, and inconclusive proceedings are to be avoided.

19The arbitration process in this case thoroughly explored and decided the issue of the applicant’s termination from employment. The arbitrator found that the breach of the workplace policies and rules supported the employer’s decision to terminate the applicant. The facts about the applicant’s status as an injured worker requiring accommodation were before the arbitrator. The applicant, however, did not raise any allegations of discrimination in relation to those facts.

20Although 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.

21The Application is therefore dismissed.