Brown v. Loblaw Companies Limited, 2011 HRTO 1128

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Sheldon Brown Applicant

-and-

Loblaw Companies Limited, Ben Mayhew, Ray Thompson and Tristan Vulencia Respondents

DECISION

Adjudicator: Mark Hart Date: June 10, 2011 Citation: 2011 HRTO 1128 Indexed as: Brown v. Loblaw Companies Limited

APPEARANCES BY

Sheldon Brown, Applicant ) Cecil Norman, Representative Loblaw Companies Limited, ) Michelle Henry, Counsel, Ben Mayhew, Ray Thompson ) and Daniel Girlando, Student and Tristan Vulencia, Respondents )

1This is an Application made under s. 53(3) of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), dated October 1, 2008. The underlying complaint was filed with the Ontario Human Rights Commission (the "Commission") on March 12, 2008.

2This matter was deferred pending the outcome of an arbitration proceeding before Tim Armstrong, which concluded by decision dated May 3, 2010. Following the conclusion of the arbitration proceeding, the applicant requested that his Application before this Tribunal be re-activated. The respondents took the position that the substance of the Application already had been appropriately dealt with in the arbitration proceeding such that the Application should be dismissed pursuant to s. 45.1 of the Code. In the alternative, the respondents took the position that any remaining allegations were untimely and should be dismissed for delay.

3A hearing was held on March 7, 2011, to hear evidence and submissions on the preliminary issues raised by the respondents. I heard evidence from the applicant and submissions from the parties.

The substance of the Application

4This is a transitional application, which pursuant to the Code must be based upon the subject-matter of the complaint as filed with the Commission.

5In the complaint, the applicant alleged discrimination and harassment in employment because of disability, contrary to ss. 5(1), 5(2) and 9 of the Code.

6The applicant had been employed by the respondent company as a general warehouse worker since August 1999. In February 2001, the applicant suffered a work-related injury to his left ankle and foot, for which he claimed and received WSIB benefits. He returned on modified duties after a month and then resumed full-time duties in the fall 2001.

7In 2003, the applicant states that he injured his right ankle and went on light duties on his doctor's advice. His complaint alleges that during this period of time, his supervisor, the personal respondent Ray Thompson, and another supervisor started to harass him with threats of dismissal for being on modified duties for so long. He alleges that Mr. Thompson threatened to take him off light duties because too many employees were on light duties at that time. In his evidence before me, the applicant stated that sometime in January 2004, he transferred from the afternoon shift to the night shift, at which point Mr. Thompson was no longer his supervisor.

8The complaint states that in March 2004, the applicant sustained another work-related injury, this time to his hands. He alleges that despite doctor's notes, his supervisors at that time, the personal respondents Ben Mayhew and Tristan Vulencia, refused to accommodate him. He further alleges that in June 2004, Mr. Mayhew issued him an unwarranted suspension. In his evidence before me, the applicant stated that an incident occurred in late June 2004 when he was sent to the hospital and was told not to come back to work until he could perform 100% of his duties.

9The applicant thereafter remained off work until November 2005, when he returned to work at a different warehouse. Mr. Mayhew and Mr. Vulencia were no longer his supervisors at this time.

10The applicant's complaint alleges that when he returned to work in November 2005, management refused to provide him with modified duties. He further alleges that in February 2006, management told him that he was not meeting company standards and, instead of providing him with accommodation, reprimanded him by taking away his regular working days. The applicant's employment was then terminated on March 5, 2006, which he alleges was due to his disabilities.

The arbitration proceeding

11The applicant was a member of a union, UFCW Local 100A, when he was employed by the respondent company. He filed a grievance alleging unjust dismissal dated March 21, 2006, which proceeded to arbitration.

12The arbitration proceeding took place over the course of 12 days during the period from April 2008 to April 2010, and numerous witnesses were called to testify on behalf of the union and the employer. As previously indicated, the arbitration award was issued by Mr. Armstrong on May 3, 2010. The arbitration decision is 53 pages in length, with an additional 15 page appendix dealing with the medical evidence, and thoroughly reviews the evidence and allegations raised in that proceeding.

13After having reviewed all of the evidence and submissions, the arbitrator found that the employer was at fault in terminating the applicant without conducting an independent assessment of his injuries. In dealing with the issue of remedy, the arbitrator found that the applicant, if appropriately accommodated, would have been able to perform part-time work for a significant period of time, and awarded him $25,000 in general damages for his loss of income. The arbitrator also addressed the psychological trauma experienced by the applicant, especially since late June 2004 and culminating in his termination in March 2006, which the arbitrator found had resulted in serious negative effects, both on the applicant's personal life and in his prospects for alternative employment. The arbitrator also concluded that the employer's failure to accommodate the applicant for most of the period between late June 2004 and the date of his termination was a principal cause of the applicant's psychological state. The arbitrator expressly found that the employer had contravened the Code, thereby causing injury to the applicant's dignity, feelings and self-respect, for which the arbitrator made a further monetary award in the applicant's favour in the amount of $20,000.

14In his evidence before me, the applicant had difficulty recalling the extent of the evidence that had been given at the arbitration hearing by himself and other witnesses called by the union in support of the grievance. The respondents were prepared to call evidence in this regard from a company representative who attended the arbitration proceeding; however, the applicant (through his representative) agreed to allow this individual to stipulate his evidence in this regard and did not wish to challenge this evidence on cross-examination.

15Accordingly, it was stipulated that during evidence at arbitration, the applicant testified about his right ankle injury in 2003 and described the nature of that injury and his symptoms and testified about being placed on modified duties because of this injury. It was further stipulated that the applicant testified at the arbitration hearing about the issues from 2004, that he was asked by his supervisor Mr. Vulencia to perform up to the 100% standard, and that he was not given modified duties. It was stipulated that the applicant testified about his request to go to the hospital in 2004, that he gave medical notes to Mr. Mayhew and Mr. Vulencia, and that Mr. Vulencia handed the medical note back to him and told him not to come back until he could perform 100% of his duties. It was further stipulated that two union representatives also gave evidence at the arbitration hearing about the applicant's request to go to the hospital, his accommodation issues, and suspensions he received in 2004.

16It is not disputed that at the conclusion of the applicant's evidence before he arbitrator, he was given an opportunity to add anything further to the evidence he already had given.

Request for dismissal under s. 45.1 of the Code

17Section 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.

18The applicant concedes that the arbitration proceeding appropriately dealt with the discrimination issues raised in his complaint, particularly relating to his allegations that his disability-related needs were not appropriately accommodated and that his termination amounted to discrimination because of disability contrary to the Code. It is clear that these issues are fully and thoroughly dealt with in the arbitration decision, and were resolved in the applicant's favour.

19The applicant contends, however, that the arbitrator did not address the allegations of harassment raised in his complaint, particularly as raised against the personal respondents, or that the applicant was subjected to a poisoned work environment. The applicant's representative submits that it is important for the achievement of the purposes of the Code that individuals responsible for harassment or a poisoned work environment be held to account for their actions, which he submits was not done in the arbitration award.

20There is no doubt that in the arbitration award, the arbitrator did not make a specific finding that the applicant's three supervisors who are named as personal respondents in this proceeding engaged in harassment or created a poisoned work environment. In an arbitration proceeding, the parties before the arbitrator are the union and the employer, and do not include individual supervisors.

21However, the standard for me to apply under s. 45.1 of the Code is not whether precisely the same parties were involved in the other proceeding or that findings were made in precisely the same manner as might be made by this Tribunal. Rather, the standard is whether, in my opinion, the arbitration proceeding appropriately dealt with the "substance" of the Application. In this case, I find that it did.

22The applicant testified before the arbitrator about the events at issue in this proceeding in relation to his allegations of harassment and a poisoned work environment, or at the very least was given the opportunity to do so. The arbitration decision itself references the applicant's right ankle injury in 2003, the injury to his hands in 2004, and the suspensions issued in 2004, all of which form the underlying factual foundation of the allegations made in his human rights complaint.

23More significantly, however, in making his award of compensation under the Code for injury to dignity, feelings and self-respect, the arbitrator expressly references the events from 2004 which culminated in the applicant's termination in March 2006 and the impact of those events on him. In other words, the impact upon the applicant of the events for which he alleges harassment and a poisoned work environment already were taken into account by the arbitrator in making his award.

24I appreciate that no specific finding was made by the arbitrator that the personal respondents engaged in harassment or created a poisoned work environment. However, I find that by considering the totality of the applicant's evidence at the arbitration hearing, which included the events from 2003 and 2004, and by assessing the impact of the totality of the events on the applicant in making his compensatory award under the Code, the arbitrator effectively dealt with the entire substance of the Application before this Tribunal. In this regard, I note that the arbitrator's award of $20,000 as compensation for injury to dignity, feelings and self-respect under the Code is a substantial award that is toward the higher end of the scale of such awards made by this Tribunal.

25Accordingly, having found that the arbitration proceeding appropriately dealt with the substance of this Application, the Application is dismissed.

Delay

26While it is not strictly necessary for me to address the respondents' position regarding delay, as I have decided to dismiss this Application pursuant to s. 45.1 of the Code, I will address the parties' submissions on this point briefly.

27It has been established that with regard to transitional applications, the one year period for filing an Application is measured from the time of the events at issue until the date the underlying complaint was filed with the Commission: Taylor-Wright v. York University, 2010 HRTO 312.

28In this case, the applicant is relying upon events from 2003 in relation to his allegations of harassment and a poisoned work environment as against the personal respondent Mr. Thompson and from January to June 2004 as against the personal respondents Mr. Mayhew and Mr. Vulencia. These events occurred almost five and four years respectively prior to the filing of his complaint with the Commission in March 2008. I do not regard these events as comprising a series of events culminating in the applicant's dismissal in March 2006, as the applicant's evidence before me is that he has no idea whether Mr. Thompson, Mr. Mayhew or Mr. Vulencia played any role in the termination of his employment, and in light of the fact that there is a gap of almost a year and a half between the applicant's absence from work as of late June 2004 and his return to work in November 2005.

29Pursuant to s. 34(2) of the Code, the first question is whether the applicant has satisfied me that the delay in raising these allegations was incurred in good faith, which requires that the applicant provide some reasonable explanation for the delay: Imrie-Howlett v. Peel District School Board, 2009 HRTO 1339.

30The applicant's evidence before me was that he did not file a complaint regarding the allegations against Mr. Thompson from 2003 was because he was told by his union that the human rights aspect of that situation would be handled and dealt with. He states that during that time, he contacted the Human Rights Commission and they said that if he was unionized, he couldn't file a human rights complaint until his union had officially stated that they would not help him with his claim. The applicant acknowledged in his evidence before me that the union assisted him in getting a resolution of that particular issue.

31As a result, I have no evidence before me to indicate that the applicant sought to pursue the issues from 2003 further until he filed his complaint in March 2008, or perhaps when he states that he contacted the Commission and attempted to file a complaint sometime in 2007. In my view, this is insufficient to provide a reasonable explanation for the applicant's delay in bringing forward the issues from 2003, and I accordingly find that the delay in raising these issues was not incurred in good faith within the meaning of s. 34(2) of the Code.

32With regard to the applicant's allegations regarding the period from January to June 2004, the applicant's evidence before me was that he wrote correspondence to his union about these issues, but he received no response. He states that he contacted the Human Rights Commission and the Ontario Labour Relations Board regarding these issues, and they said that since he was unionized, he could not make a claim unless the union officially stated that it could not help him. From the applicant's evidence, it appears that these issues then lapsed into abeyance, as he stated before me that it was not until years after that he sent further correspondence to union, and then he figured "enough is enough" and filed his human rights complaint.

33I certainly appreciate the submission made by the applicant's representative that at this time, the Commission was discouraging complainants from filing human rights complaints if they were represented by a union. However, even accepting the applicant's evidence, I have no explanation for why he allowed the issues from 2004 to remain in abeyance despite a lack of response from the union and did not pursue them again until "years after". Accordingly, once again I find that the applicant has not provided a reasonable explanation for his delay in pursuing the issues from January to June 2004, and I accordingly find that the delay in raising these issues also was not incurred in good faith within the meaning of s. 34(2) of the Code.

34As these are the issues upon which the applicant relies in attempting to re-activate his Application, I find that that the applicant's delay in pursuing these issues provides a further basis upon which the Application should be dismissed.

35Accordingly, for all of the foregoing reasons, the Application is dismissed.