HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Tesfaye Dessye
Applicant
-and-
MUC Shelter Corporation c.o.b. Sojourn House,
Debbie Hill-Corrigan, Rita Kohli, and Kevin Lee
Respondents
-and-
Canadian Union of Public Employees, Local 3798
Intervener
DECISION
Adjudicator: Judith Hinchman
Indexed as: Dessye v. MUC Shelter Corporation c.o.b. Sojourn House
APPEARANCES
Tesfaye Dessye, Applicant ) On his own behalf
MUC Toronto Community Housing, ) Robert Budd, Counsel,
Debbie Hill-Corrigan, Rita Kohli,
And Kevin Lee, Respondents )
Canadian Union of Public Employees, Local 3798, )
Intervener ) Risa Pancer, Counsel
INTRODUCTION
1This is an Application dated June 30, 2009 made under section 53(5) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The underlying human rights complaint (the “Complaint”) was filed with the Ontario Human Rights Commission on March 28, 2007. The applicant alleges discrimination in employment based on breach of settlement and reprisal.
2This Decision decides the respondents’ request to dismiss this Application pursuant to section 45.1.
3The Canadian Union of Public Employees, Local 3798-04 (“CUPE”) was granted Intervener status in this proceeding and participated in the hearing.
4A hearing was held on April 12, 2010 to hear the parties’ submissions on this preliminary request. For the following reasons this Application is dismissed.
BACKGROUND
5The applicant was employed as a Housing Counselor with the corporate respondent, MUC Shelter Corporation c.o.b. Sojourn House (“Sojourn House”), a refugee shelter in the City of Toronto. At the relevant time, the respondent Debbie Hill- Corrigan was Sojourn House’s Executive Director, the respondent Rita Kohli was its Program Director, and the respondent Kevin Lee was a member of the Board of Directors serving on its Executive Board and Personnel Committee. On October 3, 2006, the applicant’s employment was terminated with cause.
6There is a collective agreement in place between Sojourn House and CUPE. The applicant was covered by the agreement.
7The applicant filed his Complaint on March 28, 2007 alleging discrimination in his employment on the basis of Breach of Settlement and Reprisal.
8In his Complaint the applicant alleges that the respondents reprised against him for filing an earlier human rights complaint (“Prior Complaint”) that was settled in late 2001 (“Prior Complaint Settlement”). The Complaint details allegations that because of that Prior Complaint and because he was an active member of his union “combat[ting] racism, harassment, and bullying,” the respondents trumped up a charge of sexual harassment against him for the purpose of “ousting” him from his job and sending a “message to other minorities.” The Reprisal thus comprised harassment for his union activities and for his race, investigating him for sexual harassment against a Sojourn House client, and ultimately terminating his employment.
9The applicant also alleges that the corporate respondent breached a term of the Prior Complaint Settlement. The applicant has not filed the Settlement agreement. In his Complaint and at the hearing, however, the applicant alleges that a term of that Settlement was that the respondents agreed to create an Anti-Racism/Discrimination Harassment Access and Equity policy. The Sojourn House Board of Directors adopted an “Anti-Racism and Anti-Harassment Policy and Complaints Resolution Process” (the “Anti-racism Policy”) on August 26, 2003. The applicant alleges that in its handling of the sexual harassment investigation and by hiring an outside investigator, the respondents did not follow the Policy and thus breached the Prior Complaint Settlement.
10The outside investigator, Yola Grant, investigated the sexual harassment complaint against the applicant. Based on her report, the employer terminated the applicant’s employment.
11Prior to filing his Complaint in March of 2007, the applicant filed three grievances in April and October of 2006 that the respondents claim relate to the very same allegations later raised in his Complaint and that are the subject matter of this Application. The grievances were unresolved through the grievance process and were collectively referred to arbitration (the “Arbitration”). The parties agreed on the appointment of arbitrator Russell Goodfellow. Hearings commenced in mid 2007 and ended in the spring of 2009. The award of the arbitrator was released November 25, 2009.
12The respondents and CUPE assert that the substance of the Arbitration dealt with the same matter that is the subject of this Application. In the alternative CUPE argues that it would be an abuse of process to permit the Application to proceed.
DECISION
13Section 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.
14It is 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. With regard to the second part, the Tribunal may consider 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 substantially the same, and whether the matter raised was “appropriately dealt with” in the other proceeding. See Robinson v. Spanish (Town), 2009 HRTO 1484.
15In Campbell v. Toronto District School Board, 2008 HRTO 62, the Tribunal discussed some of the principles that apply to the interpretation of s. 45.1, which 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;
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 was reached in the other forum.
16Applying Campbell, supra, the Tribunal in Dunn v. Sault Ste. Marie (City), 2008 HRTO 149, stated that other relevant factors are the purpose of the statutory scheme governing the other proceeding, whether the same question was decided, whether human rights principles were applied, and the safeguards available to the parties in the other administrative proceeding.
ANALYSIS
17There is no issue that a labour arbitration under a collective agreement is a “proceeding” within the meaning of s. 45.1 of the Code. See Boncori v. TRW Canada Ltd.,2008 HRTO 62. In Blackman v. Ontario (Community Safety and Correctional Services), 2009 HRTO 970, the Tribunal referred to the fact that the Supreme Court of Canada has affirmed that grievance arbitrators have not only the power but also the responsibility to implement and enforce the substantive rights and obligations of human rights and other employment-related statutes as if they were part of the collective agreement (Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42).
18I am satisfied that the arbitration was a proceeding for the purposes of s. 45.1.
Was the subject matter of these Applications appropriately dealt with by Arbitrator Goodfellow?
19Arbitrator Goodfellow’s Award considers the corporate respondent’s decisions to suspend and then terminate the applicant based on the sexual harassment complaint, whether the corporate respondent violated the no discrimination and management rights provisions of the Collective Agreement, whether the corporate respondent breached its Anti-racism Policy, and whether the applicant faced racial or anti-union discrimination and harassment. The Complaint was before the Arbitrator and the applicant provided evidence with respect to his Prior Complaint and the fact that that Complaint was settled.
20At the outset of the Arbitration, as a preliminary matter, the Union argued that the applicant be reinstated into his job because the corporate respondent had violated its Collective Agreement by contracting the investigation to an outside third party. After a day of oral argument on this issue, Arbitrator Goodfellow dismissed this motion finding no basis for it in the Collective Agreement or in law. In making this decision Arbitrator Goodfellow was required to review and consider the Anti-racism Policy.
21Ultimately Arbitrator Goodfellow found that the applicant had engaged in the alleged misconduct, there was no evidence of harassment for his union involvement, and concluded there was no evidence to support any breach of the antidiscrimination provisions of the Collective Agreement or the Code. In reaching these conclusions the Arbitrator considered the provisions of the Code raised in this Application.
22At the hearing the applicant challenged the fairness of the arbitration proceeding. In his opinion the Arbitrator did not appropriately apply the Anti-racism Policy when he dismissed CUPE’s motion, made a number of erroneous findings of fact, and asserted he was not permitted to testify freely and speak about what he wished, and that the whole proceeding took too long. Finally the applicant questioned whether the Arbitrator had the power to apply the remedies under the Code.
23With respect to the applicant’s ability to give evidence at the Arbitration, the respondents’ position is that the applicant was examined in chief and through cross-examination for two days of the eleven-day proceeding. The applicant did not dispute this and I find that there is no evidence that adequate safeguards were not available to the parties in the Arbitration proceeding.
24This Application arises from the same facts that provided the basis for the Arbitration proceeding. Arbitrator Goodfellow considered the same allegations that are in the Application. 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.
25After considering the parties’ submissions and the Arbitrator’s decision I am satisfied that Arbitrator Goodfellow fully addressed the issues, applied human rights principles, and that safeguards were available to the parties in the other administrative proceeding.
26I find therefore that the issues raised in the Application were appropriately dealt with in the other proceeding. Having reached this conclusion I need not address the abuse of process arguments.
ORDER
27The Application is dismissed.
Dated at Toronto, this 20th day of April, 2010.
“Signed By”
Judith Hinchman
Member```