Thompson v. Liquor Control Board of Ontario, 2010 HRTO 779

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Lee Thompson Applicant

-and-

Liquor Control Board of Ontario and Ontario Public Service Employees Union Respondents

INTERIM DECISION

Adjudicator: Eric Whist Date: April 8, 2010 Citation: 2010 HRTO 779 Indexed as: Thompson v. Liquor Control Board of Ontario

APPEARANCES:

Lee Thompson, Applicant (On his own behalf) Liquor Control Board of Ontario, Respondent (Adrienne Couto, counsel) Ontario Public Service Employees Union, Respondent (Adrienne Liang, counsel)

1In this Application made under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), the applicant alleges discrimination in employment on the basis of race, colour, ancestry, disability, family status as well as reprisal. This Interim Decision addresses requests by the Liquor Control Board of Ontario (“LCBO”) to have part of the Application dismissed and the Application deferred pending the outcome of an ongoing grievance.

Background

2The LCBO first made its request to have part of the Application dismissed and the Application deferred in its original Response to the Application. The LCBO has made a request that all of the applicant’s allegations of discrimination up to and including July 10, 2006, be dismissed on the grounds that on that date the applicant freely and voluntarily agreed to minutes of settlement and a full and final release with respect to the substance of the Application for the time period up to and including July 10, 2006. According to the Response, the minutes of settlement resolved a number of grievances that were filed by the applicant alleging the same human rights violations as raised in the Application. The LCBO, in its Response, also made a request that the Tribunal defer consideration of the Application, given that the applicant had an outstanding grievance related to an allegation raised in his Application.

3In an Interim Decision dated September 11, 2009, 2009 HRTO 1457, the Tribunal determined that a teleconference would be held to consider the LCBO’s requests. This teleconference was held on April 1, 2010, and involved the applicant and counsel for both respondents. This Interim Decision is based on the oral submissions made by the parties during the teleconference as well as the written submissions and other documents the parties had already filed with the Tribunal.

4At the outset of the teleconference, the applicant stated his intention to withdraw the outstanding grievance of concern to the LCBO (OPSEU Grievance Number 2008-5107-0018). The applicant had previously communicated his intention to withdraw this grievance in a letter to the Tribunal dated October 5, 2009. The LCBO stated that as the applicant was committing to withdrawing his grievance the LCBO was prepared to no longer request that the Application be deferred. The LCBO did communicate that it would consider a further deferral request in the event that the grievance was not withdrawn.

5Given these circumstances I do not need to make a decision on the deferral issue. I note that it appears that the applicant has filed another grievance in relation to a recent event. However, as this grievance is unrelated to any of the allegations raised in the Application, the parties agreed that it would not give rise to any requests to defer the Application.

6The applicant also stated at the outset of the teleconference that he was not opposed to those parts of his Application referring to events prior to July 10, 2006, being dismissed as requested by the LCBO. The applicant then went on to itemize those parts of his original Application he felt should continue to form part of the Application as well as stating that he believed that all of the grounds of discrimination he identified in his original Application, namely race, colour, ancestry, disability, family status as well as reprisal, still applied to an Application based on events that occurred after July 10, 2006.

7I find, based on the oral and written submissions of the LCBO and the applicant, as well as the documents before me, that the allegations raised in the Application in regards to events up to and including July 10, 2006, should be dismissed under section 45.1 of the Code. Section 45.1 states that

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.

8In Campbell v. Toronto District School Board, 2008 HRTO 62, this Tribunal held that it was 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. I am satisfied that the union grievances filed by the applicant and the resulting minutes of settlement that resolved these grievances are a proceeding within the meaning of section 45.1. This is in keeping with established Tribunal case law. See, for example, Dunn v. Sault Ste. Marie (City), 2008 HRTO 149; Passmore v. P&H Foods, 2009 HRTO 1378.

9I am further satisfied that the minutes of settlement appropriately dealt with the substance of the Application. These minutes are a negotiated settlement between the applicant and the LCBO that were voluntarily entered into in order to resolve the applicant’s grievances up until July 10, 2006. It is not disputed that these grievances cover the same allegations about discrimination, harassment and accommodation that are raised in the Application. The fact that the parties voluntarily agreed to this settlement is significant. As stated in Dunn:

There is a strong public interest in ensuring that when parties freely choose to resolve the substance of a human rights dispute in whatever forum it is brought, the matter is at an end. This is a fundamental principle that should guide the Tribunal in the interpretation of section 45.1 because to do otherwise could make the finality of settlement highly uncertain.

10Most of the teleconference dealt with the issue of what parts of the Application should be dismissed and which parts should remain. I am of the view that a number of paragraphs of the current Application should be struck. Accordingly, I order that:

Paragraphs 1, 3, 4, 5, 6, 7, 8, 9, 10, 11, 14, 23, 24, 25, 26 and 27 be struck in that they are allegations related to events up to and including July 10, 2006.

Paragraph 35 is struck as most of it explicitly deals with transfer requests made prior to July 2006. I note that paragraphs 32 and 41 appear to raise in more detail the transfer requests made since July 2006.

11Many of the other paragraphs of the Application refer to events that may have taken place before and after July 10, 2006, or are of a very general nature. I would note, for the purposes of providing some further direction that:

Paragraphs 12, 13, 16, 18 and 20 make overarching statements about the applicant’s alleged experiences with the LCBO. However, they must be seen only in the context of events after July 10, 2006.

Paragraph 17 is to be considered in reference to the allegations raised in paragraphs 38 to 46.

Paragraphs 15, 19, 28, 33 and 36 allege that the applicant has been differentially treated because of his race, colour and ancestry. There is an issue of whether these paragraphs provide appropriate particulars but as they do not refer only to events prior to July 2006 they are not struck.

Paragraphs 21 and 22 raise allegations of reprisal for the applicant having filed human rights complaints and grievances in the past. I am satisfied that the Application can continue to raise the allegation that actions taken by the LCBO after July 10, 2006, were in reprisal for grievances filed prior to July 10, 2006. There is an issue of whether this would allow the applicant to call evidence at a hearing regarding the specifics of his grievances. This issue may require further submissions and need not be decided at this point.

It is not clear whether the applicant is alleging that the shoulder and back injuries identified in paragraph 32 existed after July 2006 and should have been accommodated by the LCBO after July 2006.

12The applicant identified in his Application an interest in mediation. The respondents expressed a similar interest in their Responses. The parties reiterated their willingness to attend mediation during the teleconference. Accordingly, the Tribunal will schedule a mediation.

13I am not seized of this matter.