Warling v. Ontario (Community Safety and Correctional Services), 2010 HRTO 826

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Terry Warling

Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Ministry of Community Safety and Correctional Services and Dave Marsh

Respondents

DECISION

Adjudicator: David A. Wright

Date: April 14, 2010

Citation: 2010 HRTO 826

Indexed as: Warling v. Ontario (Community Safety and Correctional Services)

APPEARANCES

Terry Warling, Applicant ) On His Own Behalf

Her Majesty the Queen in Right of Ontario ) Jordana Joseph, Counsel As Represented by the Ministry of Community ) Safety and Correctional Services and Dave Marsh, ) Respondents )

1This is an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the “Code) alleging discrimination in employment on the basis of family status. It relates to various events that occurred between 2004 and 2006.

2The applicant filed a grievance through his Union, the Ontario Public Service Employees Union, which was heard and dismissed by the Grievance Settlement Board (“GSB”): 2009 CanLII 43618 (Gray). In an Interim Decision dated November 30, 2009, 2009 HRTO 2069, the Tribunal directed that a conference call be scheduled to hear submissions on the respondents’ requests that the Application be dismissed as untimely, and, pursuant to s. 45.1 of the Code, on the basis that the GSB decision appropriately dealt with its substance. The call was held on January 19, 2010. In view of my decision on the issue of s. 45.1, I do not need to consider the issue of whether the Application is untimely.

3Section 45.1 of the Code reads 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.

4There is no question that a hearing before the Grievance Settlement Board is a “proceeding” within the meaning of s. 45.1. The issue, therefore, is whether the hearing “appropriately dealt with” the subject matter of the Application. In Campbell v. Toronto District School Board, 2008 HRTO 62, the Tribunal discussed some principles that apply to the interpretation of s. 45.1, that have been applied in many cases since then. Among them are:

• that the purpose of s. 45.1 is to avoid the duplication of proceedings and the re-litigation of issues that have been dealt with elsewhere;
• that the Tribunal should not be overly technical in determining whether another proceeding has appropriately dealt with the substance of the application;
• that the Tribunal does not act as an appellate court from the decisions of other tribunals and need not be satisfied that it would have reached the same conclusion as that reached in the other forum.

5The human rights issues raised in the Application were directly raised before and decided by the GSB following a four-day hearing, applying human rights principles. Proceeding with this Application would be to re-litigate the issues raised and decided in the grievance process.

6The applicant argues that his grievance did not mention the Code, and that various issues arose too late in the GSB hearing process, through the evidence of a witness, for them to be addressed in that process. He says that he was not prepared to proceed with them. He says that this was caused, in part, by the fact that the respondent did not provide a response at stage 2 of the grievance procedure.

7The parties had the full opportunity to make their case before the GSB, and Vice-chair Gray made his decision on the basis of the evidence and the submissions before him, applying human rights principles. Any issues about the grievance process and the hearing could have been raised before him. An alleged failure by the employer to follow the grievance procedure, before the GSB process even started, and the fact that certain evidence from a witness came out during the hearing do not permit the applicant to now re-litigate the issues that were appropriately decided by the GSB.

8As the GSB decision appropriately dealt with the substance of the Application, the Application is dismissed pursuant to s. 45.1 of the Code.