Isai v. Milk and Bread Drivers, Dairy Employees, Caterers and Allied Employees, Local Union 647, 2010 HRTO 756

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Sabri Isai

Applicant

-and-

Milk and Bread Drivers, Dairy Employees, Caterers and Allied Employees, Local Union 647, Gerry Cadeau, Amanda Jawanda, John Romanelli

and Ricardo Machado

Respondents

AND BETWEEN:

Sabri Isai

Applicant

-and-

Cara Operations Limited, Lisa Bruce, Mike Green and Martin Leblanc

Respondents

decisiON

Adjudicator: David Muir

Date: April 6, 2010

Citation: 2010 HRTO 756

Indexed as: Isai v. Milk and Bread Drivers, Dairy Employees, Caterers and Allied Employees, Local Union 647

1These are two Applications filed June 25, 2009 under section 53(5) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). For ease of reference the respondents in file TR-0614-09 will be referred to as the union respondents and the respondents in TR-0615-09 as the employer respondents.

2The respondents have all filed Requests for Order During Proceeding seeking the early dismissal of these Applications. The parties including the applicant, have waived their right to make oral submissions, accordingly the Requests have been determined on the basis of the parties' written submissions.

3The background facts are important to understand the positions of the parties. What follows is largely drawn from the parties' submissions as well as a decision of the Ontario Labour Relations Board (the Board) dismissing the applicant's Duty of Fair Representation application (DFR) made pursuant to section 74 of the Labour Relations Act, 1995, S.O. 1995, c.1, Sched. A, as amended, that the respondent union had failed in its duty to represent in manner that was not arbitrary, discriminatory or in bad faith.

4The applicant was employed as a driver of high lift trucks, delivering commissary supplies to aircraft at Pearson International Airport. The applicant was diagnosed with cancer and was off work from April 2003 to July 2004. Prior to his going off work there had been a serious workplace incident involving an altercation with a co-worker which came to the attention of the police. The employer appears to have held the applicant primarily responsible for the incident and looked to him to accept responsibility and apologise to the co-worker. This incident plays an important role in this matter because it is the inability of the parties to resolve this issue, as much as anything, which complicated the applicant's return to work after his medical leave.

5The applicant was medically cleared to return to work in mid-July 2004. In order to return to active duty he required a security clearance and a special driver's licence to operate a motor vehicle on the air-side of the airport.

6The applicant obtained his security clearance. There was some delay in the employer being made aware of it which the applicant claims led to a month's delay in his return to work. However there was also the issue of the driver's licence and most importantly the resolution of the pre-illness workplace incident. The employer was not prepared to return him to active duty until this issue was resolved to its satisfaction.

7For reasons that are not germane to this decision the workplace parties were unable to resolve the dispute and the employer took the position that the applicant should not return to active duty until he did. The applicant was given to September 3, 2004 to comply with the employer's demands failing which he would be deemed to have resigned.

8September 3^rd^ came and went and the employer notified the applicant that they considered he had resigned. The applicant filed a grievance on September 14, 2004.

9On October 14, 2004 the union respondent and the employer settled the grievance, returning the applicant to work subject to some conditions including that he get the required driver's licence. Because the applicant had not yet obtained this licence the reinstatement agreement did not contemplate back pay.

10The applicant did not accept the settlement and alleged in the DFR application that, in settling his grievance, the respondent union had violated its duty to fairly represent the applicant. The DFR application was dismissed on August 16, 2005 and the applicant's Request for Reconsideration was denied on September 1, 2005.

The Union Application

11The human rights complaint (complaint) filed with the Ontario Human Rights Commission (Commission) forming the subject matter of the Application against the union is dated March 20, 2006. In the complaint the applicant alleges discrimination in employment on the basis of vocational associations relating to the events described above between July and October 2004. The complaint form suggests that the final incident of discrimination occurred on September 1, 2005, the date of the decision of the Ontario Labour Relations Board.

12The respondent union takes the position that this Application should be dismissed because it is was filed out of time and/or, pursuant to section 45.1, the substance of the Application has been appropriately dealt with in another proceeding.

13Section 34 of the Code provides as follows:

34(1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series.

(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

14Under section 34, an applicant is prevented from filing an application more than a year after the incident, or the last incident in a series, unless the Tribunal is satisfied that the circumstances in subsection 34(2) exist.

15The respondent union submits that the relevant time period should be six months after the last alleged incident, which was the period prescribed in the Code at the time that the complaint was filed with the Commission. As pointed out by the applicant the Tribunal has considered the respondent union's argument on several occasions and has interpreted the Code as imposing a one year limitation period so that if the complaint was filed with the Commission within a year of the last alleged incident of discrimination it is timely. I agree with that submission. See for example Boncori v. TRW Canada 2009 HRTO 564. .

16The respondent union states that the time clock should run from the date that it negotiated a return to work for the applicant – October 14, 2004. The complaint was filed in March 2006. The applicant states that it should run from the date of the Labour Board's reconsideration decision September 1, 2005. The applicant asserts that he was not officially terminated until that decision was rendered.

17I do not agree with the applicant on this point.

18The last allegation made in respect of the respondent union's involvement in this matter is in relation to the settlement it made in September 2004. There is nothing plead in the complaint that relates to anything the union did or did not do subsequent to the settlement of the grievance. It was with the settlement of his grievance that the dispute with the union crystallized. The applicant knew at that point that there would be no back pay because the applicant lacked the required driver's licence. The applicant also knew that the employer was taking the position that it would not schedule him for work until he had the licence. It is these positions taken by the employer that form the subject matter of the complaint as it relates to the employer. If there is a human rights allegation against the union it must have occurred between July 2004 and October 14, 2004 as there are no other allegations made against the union. The applicant could have filed a human rights complaint at that time. He chose instead to launch a DFR application.

19The applicant states that the respondent union made these arguments to the Commission and they were rejected. There is no evidence that this is the case. The fact that the Commission continued to investigate the claim, despite the respondent union stating that it was out of time, is not a decision to which I must defer.

20I find that the complaint was filed more than one year after the last alleged incident involving the respondent union. The applicant states that the delay was incurred in good faith because he had reason to believe that his complaint would be dismissed if he had brought it before the DFR application had been dealt with. The applicant asserts that he knew this to be the case because his spouse had filed a complaint that was dismissed because a grievance was still progressing.

21I am not satisfied that this amounts to a good faith explanation for a delay of 17 months. In this case the grievance had been settled and withdrawn in October 2004. As noted earlier, rather than file a human rights complaint or even make inquires of the Commission, the applicant chose to file a DFR application. I also note that the complaint as it relates to the employer respondents was filed in May 2005 almost a year before the union complaint. It was not dismissed.

22If I am incorrect in this conclusion I also find that this Application should be dismissed pursuant to section 45.1 of the Code because the substance of it has been dealt with by the Board when it disposed of the applicant's claim that the respondent union had failed to represent him in a manner that was not arbitrary, discriminatory or in bad faith. For reasons set out in more detail below I have concluded that a fair reading of the application to the Labour Board and the decisions of Vice-Chair McKee indicate that the subject matter of the complaint underlying this Application as it relates to the respondent union was appropriately dealt with in that proceeding.

The Employer Application

23The complaint underlying the Application involving the employer respondents was filed with the Commission in May 2005. The central allegation in the complaint as it relates to the prohibited ground of disability is that the employer did not provide the applicant (and the union did not enforce the alleged right to it) the training necessary in order to obtain the driver's licence required to return to active duty in his pre-illness job. Apparently these licences expire after a period of time away from work and re-testing is required. Other employees on leaves of various kinds had been required to take the tests required to obtain or re-new this licence. It is also alleged that the respondent employer did not discuss alternative work that the applicant might perform as an accommodation facilitating his return to full duties.

24The respondent employer states that the substance of this Application has been dealt with in the DFR proceeding. The respondent employer was granted intervenor status in that proceeding and participated as a party. The allegations made in the DFR application include allegations with respect to the workplace incident occurring prior to the applicant's medical leave as well as salient events in the complaint between July 12, 2004 when the applicant was cleared to return to work and early September 2004 when he was deemed to have resigned and he filed the grievance referred to earlier. The allegations raised in the DFR are essentially the same as those in the complaint.

25The applicant states that the Board proceeding, because it was a DFR, was concerned with the conduct of the union and not the employer and therefore did not focus on the employer's conduct. The applicant states that the Board in its conclusion did not apply human rights principles and that this Application raises a further issue that was not part of the DFR complaint that being an alleged reprisal based on an event which occurred after the Board proceeding. Finally the applicant states that there is potential for injustice based on an alleged reasonable apprehension of bias on the part of the Vice-chair presiding on the DFR.

26Section 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.

27There is no issue raised by either party that the proceeding before the Board was not a proceeding within the meaning of the section. The only question is whether or not the substance of the Application has been appropriately dealt with. In Jarvis v. Sheet Metal Workers' International Association 2009 HRTO 121 the Tribunal summarized the principles to be considered when dealing with this question:

• 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 estoppels 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.

28Having considered all of the circumstances including the submissions of the parties and the decision of the Board I find that the decision of the Board has appropriately dealt with the subject matter of this Application. I come to this conclusion despite the submission of the applicant because I have concluded that the findings of fact made by the Board in dealing with the allegations as against the respondent union have dealt with the substance of the Application. In my view the substance of this Application has been appropriately dealt with and should be dismissed.

29There is no doubt that a DFR application will be primarily concerned with the conduct of the union and only tangentially, if at all, with the conduct of an employer. However in this case the Board considered at length the merits of the workplace dispute and made findings of fact in relation to the applicant's complaints that the employer had not provided him with training to prepare for the driver's licence testing he was required to take as well as his allegation that the employer did not provide him alternative work while he obtained the license necessary to return to his pre-illness position. These are the two allegations that form the subject matter or substance of the human rights complaints. This factual enquiry was necessary to the Board's decision in this case in order to assess the conduct of the union in settling the grievance in the manner that it did.

30The Board considered these allegations in detail and rejected them both. The applicant states that the findings of the Board were highly fact driven and that it did not apply human rights principles in arriving at its conclusions. I agree that in reaching its conclusions on these issues the Board did not articulate its reasons in human rights language. I also agree that its conclusions are fact driven. However the facts as found are binding on the parties including the applicant and in my view are complete answers to the applicant's complaints as they have been framed by him.

31As regards the claim that the employer respondents discriminated against the applicant in not providing him training to prepare for the testing for the required licence, the Board concluded based on the evidence of the three parties that no one had ever been provided such testing in circumstances such as the applicant's, that is after an extended leave of absence. That might not be the end of the inquiry applying human rights principles but the Board went on to find as a fact that the question of whether training should have been offered to the applicant never arose because the applicant refused to take the written test. This was akin, in the Board's view, to the kind of test required for a learner's permit which was a pre-condition to the practical test required to get his license to drive renewed. The Board also concluded that there was no training available, even for new hires, to prepare for this short written test other than the employee reviewing the booklet published by the airport authority on his or her own time. The applicant states that this finding of fact is incorrect however it is not open to the applicant to question that finding of fact at this stage.

32As regards the applicant's claim that he could have or should have been offered alternative work until he obtained the appropriate license, the Board found as a fact that there was no evidence "indicating that he wanted that sort of work, was prepared to accept that sort of work, or wanted Cara to look for such a job for him". Again the Board found that there was no need to consider whether the employer ought to have offered the applicant alternative work because there was no indication from the applicant had ever raised the issue with them.

33The applicant also relies on a reprisal allegation that he says was not part of the DFR application, the alleged reprisal having occurred after that proceeding concluded. The applicant alleges that the termination of his spouse by the respondent employer was a reprisal for his having asserted his human rights. The complaint makes no allegation of reprisal despite having been filed after the alleged termination of his wife. The Code and the Tribunal's Rules provide that the subject matter of the complaint forms the subject matter of an application under section 53(5) and requests to amend will only be entertained where it is necessary to the fair, just and expeditious resolution of the issues raised in the complaint. That is not the case here and I can not consider this allegation in arriving at the conclusion above.

34Finally the applicant states that there is the potential for injustice because of reasonable apprehension of bias on the part of the Vice-chair presiding on the DFR. This submission is entirely without merit. The basis for the bias claim is that the Vice-chair had been an associate and partner in the law firm representing the respondent union on the DFR. As pointed out by the respondent the Vice-chair had ended his relationship with the law firm many years prior to the DFR. In any event an argument of bias could have and should have been raised with the Board. The Tribunal does not sit in review of another tribunal's decision making – such an application ought to have been made to the Ontario Court of Justice.

ORDER

35For all of these reasons these Applications are dismissed.