Shirley Volpini v. John Crane Canada Inc., 2011 HRTO 646

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Shirley Volpini

Applicant

-and-

John Crane Canada Inc.

Respondent

-and-

United Steel, Paper and Forestry, Rubber, Manufacturing, Energy Allied Industrial and Service Workers International Union Local 16506-34

Intervenor

DECISION

Adjudicator: Eric Whist

Date: April 6, 2011

Citation: 2011 HRTO 646

Indexed as: Volpini v. John Crane Canada

APPEARANCES

Shirley Volpini, Applicant ) Self-represented

John Crane Canada Inc., Respondent ) Anna Vereschagin, Counsel

United Steel, Paper and Forestry, Rubber, )

Manufacturing, Energy Allied Industrial ) Cathy Braker, Counsel

and Service Workers International Union )

Local 16506-34, Intervenor )

1This Application was filed on September 10, 2010, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Application alleges discrimination in employment on the basis of age.

2In an Interim Decision dated December 6, 2010, 2010 HRTO 2420, the Tribunal determined that a hearing would be held by teleconference to consider the respondent’s request that the Application be dismissed on the basis that section 45.1 of the Code applies or, in the alternative, on the basis that it would be an abuse of process to allow the Application to proceed before the Tribunal. This Interim Decision also granted a Request to Intervene made by the applicant’s union, the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy Allied Industrial and Service Workers International Union Local 19506-34 (the “Union”).

3The hearing was held on March 24, 2011, by teleconference. I heard submissions from the parties. The intervenor chose not to make submissions but did provide some brief background information.

THE FACTS

4The applicant was employed by the respondent as a seal assembler beginning in July 1998. The applicant was a member of the Union, and subject to the collective agreement negotiated between the respondent and the Union.

5On August 24, 2008, the applicant received a notice of a temporary lay-off. In response, the applicant requested that she be allowed to bump either of the two employees with less seniority in the related job category of “general assembler”. These two employees were younger males.

6The applicant was relying on a bumping provision under the collective agreement which required her to demonstrate that she had the requisite skills to be employed as a general assembler. The applicant had to show that in a five-day trial “re-familiarization period” working as a general assembler that she could demonstrate a level of efficiency that would allow her to displace one of the two junior employees. The applicant undertook this five-day trial period in September 2009.

7At the end of the five-day re-familiarization period the respondent concluded that the applicant did not display the required efficiency to displace either of the two employees with less seniority and consequently the applicant was advised on September 14, 2009, that she was laid off.

8On September 15, 2009, the applicant filed a grievance which stated

I allege a violation of the C.B.A. or any other legislation in effect that the company has discriminated against me by not permitting me to bump the junior general assembler which has caused me to be laid off.

9The respondent contends that during the subsequent grievance procedure the applicant explicitly indicated that she believed that she had been subject to discrimination on the basis of age and sex during the re-familiarization period. The grievance was not resolved during the grievance procedure and went to arbitration.

10An arbitration hearing took place over seven days between October 2009 and May 2010. The respondent contends that the Union representative acting on behalf of the applicant indicated at the outset of the arbitration hearing an intention to raise the issue of age and sex discrimination as part of the applicant’s case. However, according to the respondent, this representative became sick and the Union representative who replaced him told the arbitrator that the applicant would not be pursuing allegations of age or sex discrimination as part of the applicant’s case before the arbitrator. The applicant acknowledged that age and sex discrimination were not argued before the arbitrator but stated that near the end of the hearing, the arbitrator was told of the applicant’s age (the applicant was 63 years old at the time of her Application).

11The arbitration hearings specifically focused on what took place during the five-day re-familiarization period, examining how the applicant was treated and evaluated during this period and how her experiences and work accomplishments compared with the two junior general assemblers.

12The arbitrator issued her decision on July 5, 2010, dismissing the grievance on the basis that there had been no violation of the collective agreement. The arbitrator’s decision concludes that the applicant’s re-familiarization period was fair and that she was appropriately evaluated and compared to the junior employees based on measurable objective data and appropriate standards. The arbitrator finds that the evidence established that there were real, substantial and demonstrable differences in the efficiency of the applicant during her re-familiarization period as compared to the junior incumbents. The decision does not identify or address any alleged allegations of age or sex discrimination or violations of the Code.

THE PARTIES’ POSITIONS

13In its Response to the Application the respondent submits that the Application should be dismissed under section 45.1 of the Code or, in the alternative, as an abuse of process. At the hearing, the respondent changed its focus to primarily argue that the Application should be dismissed as an abuse of process, arguing that the applicant should not be allowed to relitigate a matter that was fully decided.

14The applicant’s principal submission is that the arbitration hearing process was flawed. She submits that the arbitrator did not understand some of the evidence before her about the requirements of the job and therefore did not appropriately consider and weigh this evidence. She submits that she did not have a chance to present her case before the arbitrator as effectively as she could have because she had to testify early in the process and could not respond to issues raised later in the hearing process. She alleges that the respondent was not honest in its dealings before the arbitrator. The applicant is of the view that the arbitrator’s decision is not correct. It appears that consideration was given to seeking a judicial review of the arbitrator’s decision but that the Union decided that it would not.

ANALYSIS

Request to Dismiss for Abuse of Process

15The Tribunal has the jurisdiction to dismiss an application where to proceed would be an abuse of process. This discretionary power is confirmed in section 23(1) of the Statutory Powers Procedures Act, R.S.O. 1990, c. S.22, as amended, which provides that “a tribunal may make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes”.

16The Supreme Court of Canada stated in Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44 (CanLll):

The law rightly seeks a finality to litigation. To advance that objective, it requires litigants to put their best foot forward to establish the truth of their allegations when first called upon to do so. A litigant, to use the vernacular, is only entitled one bite at the cherry … An issue, once decided, should not generally be re-litigated to the benefit of the losing party and the harassment of the winner. A person should only be vexed once in the same cause. Duplicative litigation, potential inconsistent results, undue cost, and inconclusive proceedings are to be avoided.

17I find that it would be an abuse of process to allow the Application to proceed. The applicant had an opportunity to litigate her concerns about the fairness of the re-familiarization process. The applicant had the opportunity to present the information she felt was relevant. The arbitrator came to the conclusion, after a seven-day hearing, that the evidence established that there were real, substantial, demonstrable differences in the applicant’s performance as compared to her less senior counterparts and that the assessment process was reasonable and fair. This was a thorough examination of the facts that gave rise to the applicant’s lay-off. I see no reason that the applicant should now be able to have essentially each and every issue decided by the arbitrator reconsidered.

18The applicant contends that the arbitrator misapprehended some of the evidence before her, that the respondent was not honest in the way it presented its case at the arbitration hearing and that she did not have the opportunity to present her case before the arbitrator as effectively as she would have liked. It is not clear how any of these alleged failures should now permit the applicant to pursue allegations of discrimination through a process before the Tribunal. These concerns are ones which should be addressed by an application for judicial review, the process that it is in place to deal with the types of claims of unfairness the applicant was making. I am of the view that it would be an abuse of process to allow the applicant to relitigate. This would be a duplicative and costly process that would violate the principles of judicial economy, consistency, finality and the integrity of the administration of justice.

19As I am prepared to dismiss this Application on the basis that it would be an abuse of process to let it continue, I do not need to consider the respondent’s further request that the Application be dismissed under section 45.1 of the Code.