HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Heather Humphries

Applicant

-and-

General Electric of Canada Inc., Bill Bergeron, Mark Hurst,

Mike Johnson and Vicki Goulah

Respondents

DECISION

Adjudicator: Alison Renton

Date: August 10, 2011

Citation: 2011 HRTO 1492

Indexed as: Humphries v. General Electric of Canada

APPEARANCES

Heather Humphries, Applicant ) Self-represented )

General Electric of Canada Inc., )

Bill Bergeron, Mark Hurst, Mike Johnson, ) Patricia G. Murray, Counsel

and Vicki Goulah, Respondents )

Canadian Auto Workers, Local 524 ) Les Vilneff, Representative

[1] The applicant filed an Application on June 29, 2009, under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination on the grounds of disability and sex in employment and attaching more than 35 pages of chronology and narrative (“the chronology”). She answered questions on the Application form about discrimination on the grounds of family or marital status, but did not mark them off as grounds upon which her Application is based. She identified January 23, 2009, as the date upon which the last incident of discrimination took place.

[2] The applicant commenced employment with the corporate respondent in April 2007 and was terminated in March 2008. During her employment, the applicant was represented by the Canadian Auto Workers Local 524 (“the union”).

[3] The chronology sets out a timeline, which starts in February 2007, shortly before the applicant commenced employment with the corporate respondent and ends in June 2009, describing the applicant’s efforts to appeal the denial of short term disability benefits for the period February to March 2008 to the corporate respondent’s insurer, Sun Life. The chronology references numbered exhibits, which were not attached to either the Application or the chronology. It diarizes events in the applicant’s life on various dates, mostly, but not exclusively, within the workplace. It details concerns that the applicant had in the workplace including, but not limited to: not being promoted because of gender; not given the opportunity to apply for positions; filing an internal human rights complaint about a supervisor’s conduct; concerns with the investigation including its length of time and conclusion; occupational health and safety concerns; not being permitted to continue to work with a fractured thumb; denial of short term disability benefits for July 2007 and February to March 2008; failure to receive pay increases; and discrimination on the basis of disability in being terminated. Grievances were filed about some of these issues, including the applicant’s termination, but not about others. An internal human rights complaint was filed about one issue.

[4] One of the grievances about short term disability benefits was resolved in May 2008. The termination grievance proceeded to arbitration and a decision was issued. More details about the arbitration and the decision are set out below. The other grievances appear to be outstanding.

[5] The respondents filed a joint Response requesting an early dismissal of the Application pursuant to section 45.1 of the Code because the arbitration award addressed the issues in the Application.

[6] In an earlier Interim Decision, 2009 HRTO 1869 (“the November 2009 Interim Decision”), the Tribunal removed several personal respondents.

[7] The Tribunal issued another Interim Decision, 2010 HRTO 1209, in which it scheduled a conference call hearing to hear the parties’ submissions on whether the Application should be dismissed for delay due to section 34 of the Code and whether the Application should be dismissed pursuant to section 45.1 of the Code. In advance of the conference call, the parties filed additional material. The applicant provided submissions and a number of documents with exhibit numbers written on them. The respondents provided written submissions. The parties participated in the conference call hearing, which was held on September 14, 2010.

The Arbitration Award

[8] The grievance filed about the applicant’s March 2008 termination was referred to arbitration. Gail Brent was appointed as the arbitrator (“the arbitrator”) and the arbitration hearing took place on September 4, 2008, and January 23, 2009. The arbitrator released her decision on January 28, 2009 (“the arbitration decision”). The parties provided the Tribunal with a copy of the arbitration decision.

[9] The applicant was terminated in March 2008 after she failed to report for work in February 2008. She had requested time off in February 2008 to travel to Florida with her husband. Her request for time off was denied by the corporate respondent and she was instructed to attend work. She did not, travelled to Florida, and was subsequently terminated. The applicant produced a medical document placing her on medical leave for a period from February to March 2008, including the dates that she had failed to report for work.

[10] The arbitrator dismissed the grievance. At p. 6, the arbitrator determined:

There is no evidence before me from which I can conclude that the Employer was in any way discriminating against the grievor by reason of her illness or by reason of any disability. Further, there is no evidence from which it could be concluded that the Employer failed in any duty to accommodate the grievor, if in fact she is disabled, because there is no evidence that the grievor informed the Employer of any disability which needed accommodation.

It was also suggested in argument that the Employer’s decision to discharge the grievor was influenced by the fact that she had lodged grievances and complaints in the past alleging, among other things, harassment and discrimination. There is no evidence to support this suggestion. Had the allegations against the grievor been less serious, then it might have been possible to draw such an inference; however, in view of the seriousness of the allegations I would be most reluctant to make such an inference.

The Applicant’s Submissions

[11] The applicant submits that her Application should continue to proceed on all allegations contained in her chronology and not those separate from her termination. She submits that she contacted the Ontario Human Rights Commission (“the Commission”) in early 2008 about her complaints of discrimination and was told that the Commission would not accept a complaint from her until she finished with both the union and the corporate respondent with respect to her grievances. She was told by the corporate respondent that all of her grievances would be addressed at arbitration, but notes that the arbitration award only addressed her termination grievance and not her other outstanding grievances. She waited until the arbitration award was issued before filing her Application.

[12] The applicant submits that her medical condition prevented her from filing her Application earlier. In that regard, she submits that she has a heightened emotional side effect from a head injury she incurred in 1988, for which she received medical treatment. She also suffers from depression. She states that she was heavily medicated at the arbitration meeting. Depression, she asserts, causes people not to respond when negative things happen to them and she takes things very personally and it shuts her down. Deadlines cause problems for her.

[13] The applicant saw Dr. Emilie Newell on August 17, 2010, and requested that Dr. Newell write a letter to the Tribunal substantiating her illness and Dr. Newell said that she would send one. The applicant stated that Dr. Newell had been away and was not sure if the letter had been sent to the Tribunal by the date of the conference call because she had not received it yet herself. Apart from Dr. Newell’s letter, the applicant provided various medical documentation which, she asserts, supports her position that she could not file her Application earlier due to her medical condition.

[14] The applicant admitted that she received a copy of the arbitrator’s decision in February 2009 but did not file her Application until June 2009. She thought that she had six months to a year to file her Application after her last dealings with the union and the corporate respondent and this was based upon her discussions with the Commission in early 2008. This understanding combined with her depression resulted in her filing her Application in June 2009.

[15] She was able to attend a number of medical appointments and pursue appeals for short term disability benefits from Sun Life subsequent to her termination and before she filed her Application because her husband and the union assisted her. The applicant submitted that she was told that she had to attend her medical appointments and that her husband helped her attend the medical appointments.

[16] Mr. Humphries spoke during the conference call to submit that the applicant “shuts down” after about 20 minutes of speaking about the human rights issues. He submitted that she gets very agitated when discussing the allegations, which he alleged was the result of the applicant’s depression and her brain injury. He submitted that when the applicant is scared or confronted she becomes angry or cannot say anything, which contributed to her reactions to some of the allegations of discrimination contained in the chronology.

[17] The arbitrator, the applicant alleges in her Reply, had copies of her other grievances, which raised human rights issues, and various medical documentation. The arbitrator was only concerned with the termination grievance, ignored all written evidence and believed “only hearsay evidence” from the respondents. The applicant asserts that the arbitrator “apparently” dismissed all claims of discrimination, failed to look “seriously” at any harassment evidence and dismissed all harassment claims with the termination decision. She submits that the arbitrator “condoned” the harassment and discrimination allegations against the respondents.

The Respondents’ Submissions

[18] The respondents submit that the Application should be dismissed because it was filed outside the one-year limitation period required by section 34(1) and because the applicant has not provided a reasonable explanation that the delay in filing her Application was incurred in good faith. The termination was in March 2008, 15 months before the Application was filed, and the Application is therefore untimely. The other claims of harassment set out in the chronology pre-date the termination and are also untimely. The onus on establishing that the delay was incurred in good faith rests on the applicant.

[19] With respect to the issue of the applicant’s medical condition, the respondents note that the applicant had the ability to attend the arbitration hearing, which was held over several days, and give sworn viva voce evidence. Further, she was able to pursue several appeals with Sun Life, the respondents’ insurance carrier. These indicate that she was fully capable of asserting her rights and that any delay was not in good faith.

[20] The respondents dispute the advice that the Commission allegedly told the applicant when she contacted them in early 2008. The respondents submit that before the changes to the Code in June 2008, the previous Code permitted an individual to file a complaint and permitted a respondent to object to the complaint proceeding on the basis of an outstanding grievance. In any event, at the end of June 2008, the Code was amended and the applicant had the option of filing her Application at that time.

[21] The respondents submit that the applicant clearly knows how to assert her rights given the grievances and the short term disability benefits appeals that she filed. They submit that she chose not to file her Application until after the arbitration decision was issued and assert that the Tribunal ought not permit a party to reach back in time in these circumstances.

[22] The respondents allege that the applicant’s failure to make enquiries about her rights cannot be justified. The applicant was in contact with a union official who dealt with human rights issues. The respondents note the February 25, 2009 entry in the applicant’s chronology, which states, “I received the letter from the arbitration, through the union, stating the negative findings of the arbitrator and the dismissal of the union’s grievance…. Initiated human rights case”. The applicant’s failure to file her Application within the one-year limitation period is at best wilful blindness, an excuse, the respondents submit, that the Tribunal has consistently found does not constitute a good faith reason to relieve against the limitation period.

[23] The respondents submit that the Application should also be dismissed pursuant to section 45.1 of the Code. The issue of whether the applicant’s termination was for or based upon discriminatory reasons was considered and rejected by the arbitrator. The respondents submit that the applicant is unhappy with the arbitrator’s decision and is using the Tribunal as a type of appellate court.

The Union’s Position

[24] While the union is not named as a respondent or intervenor, it was given the opportunity to make submissions during the conference call hearing. It stated that it had nothing to add to the submissions already made by the parties.

Documentation Filed by the Applicant Subsequent to the Conference Call

[25] On November 6, 2010, and subsequent to the conference call, the applicant submitted further documentation to the Tribunal for its consideration. The respondents also received a copy of the documentation. This documentation included a “Patient Encounter” form, dated March 24, 2010, from the office of Dr. Omiwole, a letter dated October 19, 2010, from Dr. Newell addressed to the Tribunal, attaching what appears to be a partial article entitled “Neuropsychological Sequelae of Minor Head Trauma”, and an email dated October 19, 2010, from Dr. Newell to the applicant.

[26] The respondents submitted a letter dated November 8, 2010, objecting to the introduction of such material on the grounds that it is irrelevant, inappropriate, improper and ought not to be considered by the Tribunal.

Delay in Filing the Application

[27] Section 34 of the Code allows applications alleging infringements of rights under the Code to be made within a one-year time limit. It also gives the Tribunal discretion to accept late applications in certain circumstances:

34(1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under subsection 45.2,

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series.

(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

[28] For the reasons set out below, I find that the allegations contained in the Application are untimely and that the applicant has not demonstrated that her delay in filing her Application was made in good faith. Accordingly, the Application is dismissed due to delay.

[29] In order to satisfy the Tribunal that the delay was incurred in good faith, the applicant must provide the Tribunal with a reasonable explanation as to why he or she did not pursue his or her rights under the Code in a timely manner. The Tribunal has set a fairly high onus on applicants to provide a reasonable explanation for the delay, while recognizing that there will be legitimate circumstances that justify exercising the discretion under section 34(2). See Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241.

[30] The chronology, as noted above, starts in February 2007 and continues until June 25, 2009, although the applicant identifies January 23, 2009, as being the date of the last event upon which the Application is based. That is the last date of the arbitration hearing. The chronology raises a number of different issues that the applicant experienced in the workplace rather than a continuum of the same issue. Those issues are identified in para. 3 above.

[31] The November 2009 Interim Decision removed as personal respondents the arbitrator and the lawyer who represented the corporate respondent at the arbitration hearing (who was different from the respondents’ current counsel). The applicant alleged that the corporate respondent’s previous lawyer made a discriminatory comment in relation to her marital status during the arbitration hearing. Apart from the comment allegedly made by the corporate respondent’s previous lawyer, and possibly an April 8, 2008 entry which is described below, the chronology contains no allegations against the respondents subsequent to the applicant’s termination, although there are entries made on various dates confirming that, for example, grievance meetings were held and which individuals from the corporate respondent attended them. Further, details about attending various job fairs, submitting resumes, and interactions with Sun Life with respect to obtaining short term disability benefits are diarized subsequent to the applicant’s termination.

[32] The April 8, 2008 entry journals that the applicant received a letter from the personal respondent Vicki Goulah, who works in human resources with the corporate respondent, advising that the applicant’s previous harassment complaint was not substantiated. This entry does not contain allegations about Ms. Goulah or the corporate respondent, although the applicant expresses concern about the accuracy of the letter’s contents and elsewhere in her documentation claims that the investigation was not conducted quickly enough.

[33] Although the chronology continues until June 25, 2009, the different issues in relation to the respondents cease as of the date of the applicant’s termination in March 2008. Accordingly, the applicant had one year from the date of her termination to file her Application about her termination, which was until March 2009; her earlier allegations would still be untimely as of March 2009 as they became untimely one year from the date they occurred (such occurrence dates being earlier than March 2008). Even if the April 8, 2008 entry contains allegations about some of the respondents, which I find it does not, then the applicant had until April 2009 to file her Application with respect to that allegation; any allegations before April 2008 would also be untimely. Since she did not file her Application until June 29, 2009, two months beyond the deadline for the April 2008 allegation and three months beyond the termination allegation, she must provide a reasonable explanation for her delay in filing. That reasonable explanation must also address the delay in filing her Application in relation to her allegations that pre-date March 2008.

[34] The applicant claims that her medical condition, specifically depression and earlier brain injury trauma, prevented her from earlier filing her Application. She provided a number of documents in support of this position, most of which were submitted prior to the conference call hearing and two submitted after the conference call hearing. Despite the respondents’ objections to me considering the documents that were submitted after the conference call hearing, I have considered them as I find that they are relevant to the applicant’s medical condition and the issue of delay. Further, I have considered them because during the hearing the applicant stated that she had requested a letter from Dr. Newell in August 2010 and was uncertain whether or that letter had been sent by Dr. Newell because Dr. Newell had been away. Dr. Newell’s email to the applicant confirms that she had been away.

[35] I do not find that the medical documentation assists the applicant in providing a reasonable explanation for the delay in filing her Application as a result of her medical condition. A lot of the medical documentation submitted by the applicant pertains to her medical condition up to the date of her termination. A number of the documents list the dates on which she attended, or was scheduled for, various medical appointments from June 2007 to October 2009 (chiropractic, therapy or doctor). I do not find these relevant to the issue of whether the applicant’s medical condition constitutes a reasonable explanation for her delay in filing her Application, given that they address the applicant’s medical condition up to the date of her termination or before, or merely lists dates of various types of medical appointments. The state of the applicant’s medical condition before her termination is not relevant to the issue of the delay in filing her Application. In fact, the lists setting out the dates and types of medical appointments that the applicant attended from March 2008 to June 2009 shows that she was capable of regular attendance at those appointments, even if I accept her submission that she had assistance from her husband in getting to those appointments.

[36] There are six remaining medical reports, two of which were submitted after the conference call hearing that are relevant to the issue of delay.

[37] Three of the medical reports are from the Peterborough Regional Health Centre Mental Health Services Outplacement Program dated June 3, 2008, October 14, 2008, and March 27, 2009. All three address the applicant’s depression and all three note the amount of detail that the applicant was able to provide about the discrimination that she felt while working with the corporate respondent. The March 27, 2009 report noted it was a “preoccupation”. The October 14, 2008 medical report by Dr. Momi stated, “…[the applicant’s] thought process again was mostly focused on discrimination and she will bring every discussion back to discrimination again”. This is apparently in contrast to what Mr. Humphries stated during the conference call hearing that after 20 minutes the applicant “shuts down” about the human rights issues.

[38] While these reports comment on the applicant’s depression, they do not indicate that she is incapable of completing an Application. By contrast, the October 14, 2008 report by Dr. Momi indicated “Attention and concentration okay”, and the March 27, 2009 report stated, “Heather does not report high levels of the cognitive symptoms of anxiety, such as excessive worry, negative expectancies, concentration problems, or diminished attention span”. The June 3, 2008 and March 27, 2009 reports commented on the applicant being polite and responsive during the sessions.

[39] The applicant also submitted a patient encounter form from Dr. Omiwole’s office dated March 24, 2010. Despite it being dated before the conference call hearing, the applicant submitted it after the conference call hearing. It is not of assistance to me as it pertains to the applicant’s February 15, 2008 medical appointment, which pre-dates termination of the applicant’s employment.

[40] The applicant also submitted to the Tribunal, prior to the conference call hearing, a form entitled Service Canada Medical Report, completed by Dr. Omiwole and dated May 6, 2009. In response to the question “Please describe relevant physical findings and functional limitations”, Dr. Omiwole wrote “- Low Attention Span – Impatient – Loss of Concentration – Does not understand commands/instructions from supervisors sometimes – sad mood”. There is no information before me to indicate that the applicant was working elsewhere in May 2009, which if she was would make it difficult to explain to the Tribunal how her medical condition would enable her to work yet not file an Application. Accordingly, I find that this medical report was completed in relation to her medical condition leading up to her termination in March 2008. It also does not identify what period of time during the applicant’s employment is being referred to. Therefore, the May 6, 2009 medical report is not relevant to the issue of delay in filing the Application.

[41] Dr. Newell’s October 19, 2010 letter to the Tribunal, which was submitted by the applicant to the Tribunal after the conference call hearing, is medical documentation I have considered in determining this issue. Attached to Dr. Newell’s letter is part of an article, undated, called “Neuropsychological Sequelae of Minor Head Trauma”. The applicant had a motor vehicle accident in June 1988 from which she suffered brain injury trauma and broken legs. According to the materials provided by the applicant, she successively worked in the 20 years since the accident in a skilled trades position.

[42] Dr. Newell’s letter is approximately two pages and more than half of it outlines the applicant’s condition from 1988 to July 1995. The remainder of the letter states:

Since then [July 1995] Heather has had 2 and possible 3 concussions and episodes of depression. I have described these in my notes dated 12 November 2009 and then 19 August 2010.

Each time she has a concussion albeit mild, she has a recurrence of symptoms such as confusion from which she recovers. However, the fact that she had a brain injury initially in 1998, there is a tendency to a cumulative effect with each subsequent concussion/brain injury. Additionally, her original brain injury has resulted in difficulties with mood control on top of the injury-associated memory and organizational difficulties. It is well known in the brain injury literature that quite subtle cognitive difficulties can be magnified at times of emotional distress and fatigue. Additionally, an individual who has had a brain injury is much more likely to be emotionally labile with mood swings occurring more easily. There is an interplay then between cognitive dysfunction and psychological distress, with one feeding off the other. This combination of difficulties can certainly interfere with individuals who are trying to maintain employment as mood swings especially emotional irritability are not well tolerated in the workplace. The history that Ms. Humphries described to me in November 2009 includes a series of events that caused her emotional distress and stress in addition to her usual organizational and memory difficulties.

The cognitive and psychological impairments are considered permanent and very often, they can be managed successfully with having a stable life, regular routines, and the use of compensatory strategies. However, any perturbations in an individual’s life, is likely to cause temporary disruption in the normal copying mechanisms, and it may take weeks to months for the person to get “on track again”….

[43] I do not find that Dr. Newell’s letter supports the applicant’s position that her medical condition contributed to her delay in filing her Application. I note that Dr. Newell’s notes of November 2009 and August 2010, which were referenced in the letter, were not provided to me. Furthermore, and more significantly, they post-date the date that the Application was filed and for that reason cannot shed light on why the Application was filed in an untimely manner. The dates that the applicant had possible concussions since July 1995 are not identified and are also not mentioned in any of the substantial medical documentation that the applicant provided from 2007 onwards.

[44] I further note, from the chronology and the applicant’s submissions filed in advance of the conference call hearing, that from the period of her termination to the date of filing her Application, the applicant was able to submit resumes for employment, attend job fairs and interviews, attend and testify at the arbitration hearing, volunteer in the spring of 2009 for the Heart and Stroke Foundation, and travel to another city in March 2009 to attend an International Women’s Day Breakfast. In addition, she personally participated in her short term disability appeals to Sun Life by calling, writing, and sending material, including excerpts from the Commission about human rights issues in her March 9, 2009 correspondence to Sun Life. Dr. Newell’s letter does not address how the applicant could participate in these activities and yet not file an Application. Also, it does not specifically opine that the applicant was incapable of filing an Application because of her past head injury and/or depression.

[45] While the Tribunal accepts that a delay may be in good faith because of an applicant’s disability, it has consistently ruled that it requires medical evidence that disability was so debilitating as to prevent an applicant from pursuing his or her legal rights under the Code: see, for example Reid v. Ontario March of Dimes, 2009 HRTO 2207; Downer v. Little & Jarrett, 2010 HRTO 992; Savage v. Toronto Transit Commission, 2010 HRTO 1360; and Imrie-Howlett v. Peel District School Board, 2009 HRTO 1339.

[46] In the circumstances of this case, I find that the medical documentation provided by the applicant does not demonstrate that the applicant’s disability was so debilitating as to prevent her from pursuing her legal rights under the Code.

[47] With respect to the applicant’s assertion that she spoke with the Commission and was told that discrimination issues had to be finished at the company-union level before she could file an application and then that she had a further six to twelve-month period after to file an application, I find that this also does not provide a reasonable explanation for the applicant’s delay in filing her Application. I do note that the entry on January 29, 2008, in the chronology states that the applicant spoke with the Commission. That entry states, “I discussed harassment and discrimination with OHRC and they said I had to finish at the company-union level before they could address any issue”. In her February 25, 2009 entry, the applicant writes that she received the arbitration decision and “[i]nitiated human rights case”.

[48] However, as noted in para. 3 above, there are many issues identified in the applicant’s chronology that were not the subject of either a grievance or an internal human rights complaint and the applicant has provided no explanation as to why those issues could not have been the subject of a timely application.

[49] Effective June 30, 2008, the Code was significantly changed and as part of that change, individuals who asserted that their human rights were violated no longer filed complaints to the Commission, but instead filed applications to the Tribunal.

[50] Accepting as true that the applicant was told by the Commission that her issues must first be finalized with the corporate respondent and the union prior to filing a complaint under that existing system, this still does not constitute good faith within the meaning of section 34 of the Code. The Commission gave information about an existing system that was in effect at the time, but the applicant did not take action to file an application when the system changed. In Desaulniers v. Canadian Auto Workers, 2009 HRTO 1743, where the applicant also relied upon an alleged statement a Commission staff member on the telephone, the Tribunal expressed, at para. 12, the general principle that “ignorance of the law does not excuse undue delay in the initiation of a human rights application”; see also Lutz v. Toronto (City), 2009 HRTO 1137. The applicant’s failure to learn earlier about the changes to the Code, which were passed in December of 2006 and came into effect in June 30, 2008, cannot establish good faith for filing the Application out of time and almost a year after the system changed. Furthermore, as her February 25, 2009 entry states, the applicant initiated her human rights case on that date, yet did not file her Application with the Tribunal for another four months.

[51] The Tribunal has held that if an applicant fails to demonstrate that the delay was incurred in good faith it is not necessary to make a determination as to whether anyone has been substantially prejudiced by the delay: see Esanu v. Georgetown Non-Contact Hockey League, 2009 HRTO 579, Dean v. Brantford Office Machines, 2010 HRTO 385, and Gagne v. Maximum Mining, 2010 HRTO 689.

[52] Accordingly, for the above-noted reasons, the Application is dismissed for delay.

Section 45.1 of the Code

[53] In addition to finding that the Application is untimely, I have also determined that the termination allegations were appropriately addressed by the arbitrator when she issued her arbitration award. Accordingly, I would also dismiss that part of the Application pertaining to the termination pursuant to section 45.1 of the Code.

[54] Section 45.1 of the Code states:

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.

[55] Section 45.1 has generally been considered in two parts: (1) was there another “proceeding”; and (2) if so, did it “appropriately deal with the substance of the Application”.

[56] The Tribunal has stated that the onus falls on the party seeking to rely upon section 45.1 to show that the other proceeding appropriately dealt with the substance of the Application. See Haykin v. Roth, 2009 HRTO 2017.

[57] In other decisions, the Tribunal has held that an arbitration hearing constitutes a “proceeding” within the meaning of section 45.1 of the Code (see, for example, Noble v. York University, 2009 HRTO 1201, and Delos Santos v. Maple Lodge Farms, 2009 HRTO 1690.) Following the Tribunal’s jurisprudence, I am satisfied that the arbitration hearing before the arbitrator constituted a “proceeding” under the Code within the meaning of section 45.1.

[58] The purpose of section 45.1 is to avoid the duplication of proceedings and the re-litigation of issues that have been dealt with elsewhere (see Campbell v. Toronto District School Board, 2008 HRTO 62, at paras. 29 to 31).

[59] The Tribunal does not sit as an appellate or reviewing court over a decision made by another administrative body (see Campbell, supra, at para. 31). It is not the Tribunal’s role to decide whether or not it agrees with the decision-maker in the other proceeding or would have come to the same conclusion (see Zeamanuel v. Avcan Management, 2010 HRTO 1721, at para. 17).

[60] In this Application, I find that the arbitrator clearly turned her mind to the issue of whether the applicant was terminated for discriminatory reasons. The paragraphs cited from page 6 of the arbitration decision, at para. 10 above, demonstrate this.

[61] Accordingly, I would exercise my discretion under section 45.1 of the Code to dismiss the termination allegations contained in the Application. As stated above, the entire Application is dismissed due to delay.

Dated at Toronto, this 10th day of August, 2011.

“Signed by”

Alison Renton

Vice-chair