HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Dorell Richards
Applicant
-and-
University Health Network and Rachael Peters
Respondents
Decision
Adjudicator: David Muir
Indexed as: Richards v. University Health Network
APPEARANCES
Dorrell Richards, Applicant ) Harry Kopyto, Representative
University Health Network ) Jacqueline Silvera, Representative
Rachael Peters ) No one Appearing
1This is an Application filed on July 22, 2008 pursuant to section 53(3) of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). This Decision deals with a Request for Order filed by the respondent employer seeking the early dismissal of the Application under s.45.1 of the Code on the basis that its substance has been appropriately dealt with in another proceeding. In particular, the respondent employer submits that the substance of the Application was dealt with in a previous grievance arbitration decision rendered March 16, 2010.
2The personal respondent was not in attendance and has not participated in this matter at all since the Application was filed on July 22, 2008. According to the Form C provided to the Tribunal, the applicant attempted to deliver the Application to the personal respondent by delivery to the corporate respondent. The Tribunal was advised in August 2008 that the respondent Peters no longer worked at the hospital and last known contact information for her was provided to the Tribunal. Although the Tribunal has since August 2008 included the respondent Peters in its mailings, there is no indication that this Application has ever been delivered to her. In light of my conclusions below it is not necessary to entertain further submissions from the applicant on this point, but it appears that the respondent Peters may not be a party to this Application having never had the Application delivered to her by the applicant.
3The human rights complaint (the “complaint”) filed at the Ontario Human Rights Commission on or about January 22, 2007 alleges that the applicant’s rights to be free from discrimination in employment on the basis of disability, family status and marital status were infringed by the respondent hospital. The applicant also alleges that she was subject to reprisal.
4The particulars of this general allegation as found in the complaint are as follows:
a. The applicant alleges that in April 2004 when she refused to do transportation tasks due to medical, health and safety concerns she was harassed.
b. The applicant alleges that she was harassed for past incidents, which were passed on to the personal respondent when she became the applicant’s manager. She was subject to remarks from the personal respondent as follows:
its your attitude;
nothing is wrong with your foot;
how did you walk to the subway; and
when there is past issues with management they won’t help you.
c. The applicant alleges that the personal respondent told her she was too slow and that her production was low.
d. In October/November 2005 the applicant alleges that she developed “frozen shoulder”. The applicant alleges that she was harassed by the personal respondent about time off work.
e. The applicant alleges that in October 2005 she received a final notice that she would be dismissed if her time off for sickness did not improve.
f. The applicant alleges that in October 2006 the personal respondent began to question her ability to do her job.
g. The applicant alleges that after her “frozen shoulder” the personal respondent said to her “if you were a manager would you employ a person like you”.
h. The applicant alleges that on January 10, 2007 the personal respondent asked her where she had been between 3:00 and 4:30 p.m. on December 6, 2006. The applicant alleges that she said she would have to check with her doctor. On January 11, 2007 the applicant states that the personal respondent followed up on the query from the day before. The applicant states that she had not heard from her doctor yet and the personal respondent asked her to come to her office. When the applicant arrived at the personal respondent’s office she was handed a letter of termination. She states that she immediately filed a grievance.
5I note at this stage that although the complaint indicates that there are claims of discrimination in respect of family status and marital status, there are no allegations in the complaint that relate to those grounds.
6The Tribunal has stated that it is helpful to consider s. 45.1 of the Code 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.
7In 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:
a. 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;
b. The discretion given to the Tribunal in s. 45.1 is at least as broad as the doctrines of issue estoppel and abuse of process;
c. In determining whether another proceeding has appropriately dealt with the substance of the application, the Tribunal should not be overly technical; and
d. 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 was reached in the other forum.
8In this case, the applicant had filed a number of grievances over the course of the final years of her employment with the respondent. An arbitration involving two of the applicant’s grievances was held over 23 days between June 2007 and July 2009. The arbitrator described the substance of those grievances as follows:
This case concerns two grievances: a grievance of January 11, 2007 in which the Grievor challenges the fairness of her termination that day; and a grievance of November 22, 2005, in which the Grievor claims harassment and discrimination by the Employer.
9The parties to the arbitration appear to have proceeded on the basis that the grievances included all of the issues raised in the applicant’s human rights complaint. It is referred to in the decision on two occasions, for example:
Two previous awards have been in issued in this matter, in 2008 and 2009. The 2008 award determined three things, that surveillance evidence obtained by the Hospital was admissible; that the Grievor’s harassment grievance could cover the period going back to when Rachel Peters became the Grievor’s manager in the pathology department of the Hospital (the period covered by the Grievor’s complaint to the Human Rights Commission); and that I could not assume exclusive jurisdiction over the Grievor’s human rights complaint. The 2009 decision required the production of certain of the Grievor’s medical records.
10Accordingly, the narrative of the final arbitration award begins in March 2003 and describes in significant detail the ongoing issues in the workplace involving the applicant’s claims to disability and need for accommodation and what the applicant alleges were harassment and discrimination in respect of her disabilities.
11The arbitration did not deal with the grounds of family and marital status identified in the complaint. Rather, the subject matter of the arbitration was the allegations in the complaint, all of which revolve around the disability issues and the termination as noted above. This may be because the other grounds raised in the complaint, family and marital status, relate to allegations that do not appear in the complaint and may relate to alleged events occurring primarily from 1998 to 2001 involving shift scheduling and the applicant’s childcare responsibilities. These were not considered in the arbitration because they are not in the complaint and the arbitrator only took jurisdiction over events back to when Ms. Peters became the applicant’s manager in March 2003, which was several years after the events giving rise to the family and marital status issues.
12Accordingly, the substance of the grievance arbitration was that the respondents had engaged in a pattern of workplace harassment, discrimination, and a failure to accommodate the applicant’s disability culminating in a discriminatory decision to terminate the applicant in January 2007. The arbitrator described the issues as follows at one point:
So while the facts leading to the Employer’s case that the Grievor beached (a provision of the collective agreement) are relatively brief, they are to be understood according to the Union, in the context of a long history of harassment and discrimination in violation of the Human Rights Code, R.S.O 1990. c. H.19. To determine the harassment and discrimination grievances and to decide the Union’s contention that the Hospital’s decision to rely upon (the collective agreement) to justify the Grievor’s termination was improperly motivated, it is necessary to follow in some detail the chronology of events that covers the scope of the Greivor’s discrimination grievance.
13The arbitrator then describes in detail in a 60 page decision the workplace conflict underlying the grievances and the human rights complaint. In the end the arbitrator dismissed both grievances finding that the applicant had, as alleged, used a leave without pay for a medical appointment for other purposes unrelated to the reasons for which the leave had been granted, and rejected the union’s contention that the termination was part of a pattern on ongoing discrimination and harassment on the basis of disability. The arbitrator also rejected the union’s contention that the respondent hospital had failed to accommodate the applicant.
14There is no doubt that the allegations made in the complaint are canvassed in great detail in the arbitration. Indeed, the arbitration dealt with many additional issues of contention between the workplace parties. The applicant states however that the arbitration decision did not deal with her claims of discrimination on the grounds of family status and reprisal. Nor did it deal with the allegations of systemic discrimination.
15As noted above, there are no allegations in the complaint that relate to the grounds of family or marital status. Nor is there an allegation of systemic discrimination. All of the allegations in the complaint relate to the ongoing dispute in the workplace, culminating in her dismissal, about the applicant’s alleged disabilities and the efforts, or not, of the respondent employer to accommodate them. There is no allegation that is even remotely capable of being understood as engaging family or marital status. There is also no explicit allegation of reprisal, however, some of the allegations, particularly the allegation of a discriminatory dismissal, could be framed as a reprisal complaint.
16Accordingly, the substance of the human rights complaint, which the applicant filed with this Application, was captured by the grievance arbitration and was appropriately dealt with there. There is also no doubt that an arbitration proceeding is a “proceeding” within the meaning of section 45.1 of the Code.
17This does not end the discussion however, because in this case the applicant attempted to amend her human rights complaint. A letter from the applicant’s representative sent to the Commission on September 18, 2007 sets out the nature of the amendment the applicant was seeking. The applicant sought to add the grounds of ancestry, colour, ethnic origin, place of origin and race. It was said that the applicant had inadvertently omitted these grounds from the original. At the hearing the applicant stated that she ticked off those new boxes on a new human rights complaint form.
18The Commission, in correspondence with the parties and the Tribunal dated October 10, 2010, acknowledges that a request to amend was received from the applicant:
I have reviewed the Commission’s file and have been unable to locate a copy of the amended complaint. The Commission’s records indicate that the Commission received a letter dated September 18, 2007, from Ms. Richards’ representative, Mr. Harry Kopyto, on September 18, 2007, requesting an amendment (copy enclosed). Commission staff had a telephone conversation with Mr. Kopyto on October 2, 2007 about the amendment.
The Commission’s records further indicate that the amended complaint was served on the respondents on October 2, 2007(copy enclosed).
19No one associated with this case, including the Commission, has been able to produce an amended complaint. The issue came up in the arbitration proceeding in the evidence of the applicant after the hospital’s case had closed:
The Grievor sought to disparage Ms. Peters by suggesting that Ms. Peters had once said to her that black people don’t like to work, and Jamaicans especially. This racist comment was allegedly made in 2004. The allegation was not put to Ms. Peters when she testified, it does not appear in any grievance filed by the Grievor, it does not appear in the Grievor’s complaint to the Human Rights Commission …. and perhaps, most significantly it was not mentioned in the detailed particulars of the Grievor’s discrimination and harassment grievance filed by Union counsel on the Grievor’s behalf and on her instructions shortly prior to the hearing. Ms Peters was recalled to answer the allegation. She vehemently denied it.
When the Grievor was asked why the allegation did not appear in her original human rights complaint, she said that it appeared in an amendment to the complaint filed subsequently. This arose in cross-examination and had not been mentioned previously. No record could be produced of the alleged amendment, and the Hospital was not ever provided with it.
20In a September 18, 2007 letter to the Commission requesting the amendment, the applicant’s representative provided the following particulars:
a. The applicant was pressured to change her shift schedule, denied vacation and required to work in a poisoned work environment with unwanted and discriminatory comments concerning her family status;
b. The applicant was denied employment opportunities because of her family status;
c. The applicant was denied training opportunities because of her family status;
d. The applicant was repeatedly denied the medical restrictions and limitations recommended by her family doctor, disciplined because of her disabilities and illnesses, subjected to unwanted comments about her disabilities and illnesses and was not accommodated;
e. The applicant was denied sick pay contrary to the collective agreement;
f. The respondent employer applied the attendance management program in a discriminatory manner;
g. The applicant was subject to discriminatory and harassing comments based upon her country of origin and place of origin; and
h. The applicant was terminated from her employment.
21I note that several of these allegations, although lacking in particulars, appear to be reiterations of allegations made in the original complaint as they relate to the disability claim that was considered and determined in the arbitration proceeding.
22Based on the evidence before me, I am not satisfied that the Commission amended the complaint to add the new grounds alleged by the applicant in her representative’s September 17, 2007 letter. I have come to that conclusion for a number of reasons.
23I accept without reservation that the applicant made efforts to have her complaint amended. However, the circumstances such as we know them and despite the view expressed by the Commission, suggest that it was not amended. It was also not served on the respondent or provided to the applicant in accordance with normal practice.
24I accept the respondent hospital’s assertion that an amended complaint was not served on them. The respondent states that if it had been served with an amended complaint it would have responded to it. Instead it responded to the original complaint on November 9, 2007. There was subsequent correspondence and communication between the respondent and the Commission with respect to section 34 requests that the Commission not deal with the complaint, with no mention of anything raised in the potential amendment of the complaint.
25I also note that no one, not the applicant nor the Commission, has been able to produce an amended complaint. This is despite the amendment being said to have been made in October 2007 and its existence or not coming up in the arbitration proceeding at the latest in mid-2009. I note as well that despite the applicant’s request to amend in October 2007, the interview questions asked of the applicant by the Commission’s investigator in February 2008 appear to be based solely on the disability issues and the alleged failure to accommodate the applicant.
26I also think it unlikely that the applicant’s letter dated September 17, 2007, followed by a telephone call with the applicant’s representative on October 2, 2007, would have resulted in service of an amended complaint on the same day, October 2, 2007. I note in passing in this regard that the cover letter dated October 2, 2007, which purports to deliver the amended complaint to the respondent and is addressed to Dr. Robert Bell indicates that under its cover is a copy of “ the complaint you filed” on April 3, 2007:
Please find enclosed a copy of the complaint you filed with the Commission. This copy is for your records. Your complaint was filed on April 3, 2007.
The complaint has been served upon the respondent, who has been requested to reply to your allegations. ...
27The applicant states that whatever the Commission did or did not do, the applicant should not bear the burden of its failures. The applicant states that it is a mere technicality that should not trump the applicant’s right to have her human rights issues heard. The applicant also states that she is not seeking to re-litigate the entire dispute but only those issues that were not canvassed in the arbitration.
28While not unsympathetic to the applicant’s position, the question of whether or not the complaint was amended is not a mere technicality. I only have jurisdiction over the complaint as it was when it left the Commission. In the absence of an amended complaint the Tribunal has concluded in a multitude of cases that it has no authority to expand the subject matter of the complaint even where it is clear that an applicant has attempted to amend the complaint. In Tyrell v. Intercall Canada, 2009 HRTO 228, a not dissimilar situation arose and the Tribunal determined that it would not be appropriate to allow the applicant to expand the scope of the Application and add respondents even though it was clear that the applicant had attempted to amend the complaint while it was before the Commission.
29I also note the respondent’s submission that there would be substantial prejudice in it being called on to respond to fresh allegations of events going back several years, some from the mid 1990’s, that it is now being apprised of for the first time. I agree and even more so when this problem is considered against the backdrop of a lengthy arbitration proceeding related to essentially the same factual circumstances where these new issues could have been raised and dealt with.
30Accordingly, I only have jurisdiction to consider the complaint, which although it raises several prohibited grounds, the actual allegations contained in it relate entirely to the disabilities issues and the applicant’s termination. As indicated earlier, there is no doubt that these allegations were raised before the arbitrator and determined there.
31Finally, the applicant argued, essentially, that the arbitrator erred in determining that in respect of aspects of the harassment claim and the termination, the conduct of the respondent was not improperly motivated. The applicant stated that it is fundamental to human rights law that a respondent’s intention or motivation is irrelevant. Quite aside from the fact that as I read the arbitrator’s decision what he might have said and seems to have meant is that the respondent’s actions were bona fide and non-discriminatory responses to an employee with a bad absence record and no discernable need for accommodation, it is not my role to review the arbitrator’s reasons for correctness. It is only my role to determine what was before the arbitrator and whether it was appropriately dealt with by him.
32For all of the above reasons the Application is dismissed. The substance of the complaint as it was when it was abandoned at the Commission and this Application filed was appropriately dealt with in the arbitration proceeding.
Dated at Toronto, this 14^th^ day of June, 2011.
”signed by”___________
David Muir
Vice-chair