Nohemy Cunningham Applicant

-and-

CUPE 4400, Anna Hutchison, Ann Cowan and Yolanda McLean Respondents

Nohemy Cunningham Applicant

-and-

Toronto District School Board Respondent

INTERIM Decision

Adjudicator: David Muir

Date: April 6, 2011

Citation: 2011 HRTO 658

Indexed as: Cunningham v. CUPE 4400

Appearances

Nohemy Cunningham, Applicant ) Self-represented

CUPE 4400, Anna Hutchison, Ann Cowan ) Christine Davies, Counsel and Yolanda McLean, Respondents )

Toronto District School Board, Respondent ) Glorie Alfred, Counsel

[1] These Applications were filed on December 31, 2008, under section 53(3) of Part VI of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

[2] The human rights Complaints (the “Complaints”) underlying these Applications are dated in June 2006 but appear to have been filed with the Ontario Human Rights Commission shortly after that date. The Complaint underlying TR-0917-08 contains allegations of discrimination by CUPE 4400 and several of its officials (the “union Application” and “union respondents” respectively). It is generally alleged by the applicant that her right to be free from discrimination in vocational associations on the basis of disability, race and place of origin was infringed by the union respondents.

[3] The Complaint underlying T-0918-09 relates to allegations of discrimination by the applicant’s employer, the Toronto District School Board (the “employer Application” and “employer respondent” respectively).

[4] The essential nature of both Complaints is be that the applicant experienced differential treatment because of her race and place of origin - she self-identifies as a “latin” person - and also because she was perceived to be a person with a disability.

[5] This Interim Decision deals primarily with a Request for early dismissal of the union Application. As well I make a further Direction with respect to a recurring issue of whether these Applications ought to be deferred pending the outcome of a grievance arbitration scheduled to begin in May 2011.

[6] The union respondents take the position that it would be an abuse of process to allow the union Application to proceed because the substance of it has been appropriately dealt with in an application to the Ontario Labour Relations Board (the “OLRB”) pursuant to section 74 of the Labour Relations Act, 1995, S.O. 1995, c. 1, Schedule A, as amended (“LRA”). The union respondents also state that the complaint underlying the union Application discloses no prima facie case of discrimination.

[7] The Tribunal directed the parties to provide their written submissions on the issues. The union respondents provided their submissions in accordance with the Tribunal’s Directions. The applicant filed material as well but did not address the preliminary issues other than to assert that the union Application should not be dismissed because the union respondents had discriminated against her. The employer respondent took no position on these issues.

[10] I have reviewed the post-hearing material provided by the applicant and note that much of it has already been produced in one form or another. The documents contain various iterations of the applicant’s general claim as set out above. The documents in question also include what appear to be notes of conversations with several administrative staff at the OLRB, as well as what purport to be notes of an interaction with a Vice-chair of the OLRB. I have considered all of this material but it has had no bearing on the outcome of the preliminary matter because it is simply not relevant to those issues.

The union respondents’ Request

[11] The union respondents made a Request for early dismissal of the Application against them pursuant to s. 45.1 of the Code based on decisions of the OLRB, dated January 11, February 2 and February 8, 2007. The Tribunal also requested that the parties address the question of whether or not the Application disclosed a prima facie case of discrimination.

[12] Because the union respondents framed the issue as a request under section 45.1 of the Code, I requested their submissions on the effect of two decisions of the Tribunal which have recently considered the Tribunal’s role when called upon to apply this provision where there has been a prior adjudication of issues raised in an Application before the Tribunal: [Barker v. Service Employees International Union, 2010 HRTO 1921](https://www.minicounsel.ca/hrto/2010/1921) (“Barker”) and [Trozzi v. College of Nurses of Ontario, 2010 HRTO 1892](https://www.minicounsel.ca/hrto/2010/1892) (“Trozzi”). I note that both of these decisions are the subject of pending applications for judicial review.

[13] The union Application is dismissed. For the reasons set out below, I have concluded that all of the issues raised in the union Application were also raised in the Duty of Fair Representation (“DFR”) application commenced by the applicant before the OLRB and were appropriately dealt with in that proceeding. I also find, if this is a different question, that as the applicant raised all of these issues in the DFR proceeding it would be an abuse of process to allow this Application to proceed to a hearing. I also find, to the extent that some of the issues raised in the two proceedings might have been raised and dealt with by the OLRB, they do not disclose a prima facie case of discrimination.

The Substance of the union Application

[14] The allegations made by the applicant in the Complaint comprising the substance of the union Application relate largely to alleged actions and inactions by the respondents in relation to a number of disputes the applicant had with the respondent employer and which comprise in large part the substance of the companion employer Application. The disputes with her employer revolve around three central issues. First the applicant contends that she was subject to harassment by a supervisor and was not appropriately accommodated in respect of an acknowledged disability; second, that she was improperly disciplined in September 2005; and finally, that she was “suspended” by the employer in January 2006 because she was perceived to be a person with a disability.

[15] This last claim is a key concern raised in both the employer and union Application and seems to have been at the heart of the claim in the DFR as well. Based on the materials filed by the parties this dispute can briefly be described as follows. Beginning in late 2005 but more clearly in January 2006, the applicant’s employer allegedly became concerned that the applicant might pose a danger to herself and the young children in her care at work. On January 23, 2006, the respondent employer wrote to the applicant’s family physician setting out these concerns in detail and requested that her physician provide information to assist the employer in addressing its concerns as well as identifying what accommodations, if any, might be required for the applicant to safely perform her duties. It was the respondent employer’s view at the time that the applicant was in a state of crisis following the death in quick succession of both of her parents and that there was a legitimate concern that she might pose a danger to herself or the young children in her care. The applicant was employed as a child care worker. The respondent employer put the applicant out of service on or about January 23, 2006, allegedly because of these concerns.

[16] The applicant was unable to provide medical information sufficient to satisfy her employer and at some point in the Spring 2006 the employer began insisting that the applicant undergo an independent medical assessment (“IMA”). The applicant has not to date provided medical information to the employer’s satisfaction. This issue is described in the Complaints as a demand by her employer, allegedly supported by the respondent union, that the applicant must see a doctor other than her family doctor. The applicant denies that she was a person with a disability at the time but states that she was perceived as such. The applicant also describes her being kept out of her position by the respondent employer as a discriminatory suspension.

[17] The union Application is essentially a claim that the union respondents did not adequately represent the applicant in her disputes with the employer respondent. Although there are other allegations made, the central or key issue at the heart of this dispute is the applicant’s claim that she had been suspended by the respondent employer in January 2006 and the union was not adequately representing her in respect of that issue.

[18] These allegations against the union respondents are in substance that the respondent union’s representation of her was unfair and discriminatory. Indeed, in her Complaint the applicant references section 74 of the LRA twice, once expressly alleging that the respondents have “violated section 74 of the Act and acted in a manner that was arbitrary discriminatory and in bad faith”.

[19] Section 74 of the LRA prohibits a trade union from representing a member in a manner that is “arbitrary, discriminatory or in bad faith”. The allegations of the applicant as they relate to the indifferent or inadequate representation of the applicant in her dispute with the employer are summarized below. I note that despite these general allegations that the union respondents would not meet with her and did not make themselves available to her, on the face of the applicant’s own materials that is clearly not the case as there are indications of numerous meetings and phone calls the applicant had with various union officials and others respecting her disputes with the employer.

[20] There is no need to paraphrase the Complaint in its entirety because the same kinds of allegations are often repeated more than once throughout the narrative. I note at this point that many of the allegations contained in the Complaint underlying the union Application are actually alleged actions of the employer respondent and will not appear here. What follows is a catalogue of the type of claim that the applicant makes in respect of the union respondents:

a. The applicant alleges that in one or more meetings with the employer respondent her union representatives did not provide adequate preparation to her prior to the meeting and on two occasions told her to not say anything. It also alleged that on one occasion the union substituted her representative for a meeting at the last minute.

b. The applicant alleges that in November 2005, the union did not call her to advise her of a meeting regarding a co-worker’s complaint and then the union’s representative arrived only 15 minutes before the meeting.

c. The applicant alleges that on January 11, 2006, she sought information from the union about the status of her grievances and advised the union representative that she would be retaining counsel because of the inadequate representation she was receiving from the union. The applicant alleges that the union representative responded that the applicant could not hire a lawyer because a grievance had been filed by the union.

d. The applicant alleges that on several occasions she attended at the union’s offices and asked to speak to someone about her grievances and was told no one was available. On these occasions when it appears that she did speak to a union official, they were unhelpful and/or rude to her saying they did not have time etc. The applicant alleges that one or more union officials were rude to her in January 2006, March 2006 and September 2005 or 2006. It is not disclosed how these individuals were rude to the applicant.

e. The applicant also alleges that various union representatives did not return her phone calls in a timely manner. This is alleged to have occurred on one or more occasions.

[21] In addition to these allegations which comprise the bulk of the applicant’s claims against the union respondents, the applicant has made a smaller number of allegations of comments by several of the individual respondents which are alleged to have been discriminatory. These allegations are paraphrased below. As with the allegations regarding indifferent or inadequate representation, some of the allegedly discriminatory remarks are alleged to have been made on more than one occasion. I will note where it is possible to do so how often a particular kind of remark is said to have been repeated:

a. The applicant alleges that the individual union respondents echoed the respondent employer’s request or demand that she attend a medical assessment by someone other than her own doctor. For example, it is alleged that one or more of the union respondents told that applicant on more than one occasion that she must see a doctor other than her own doctor before she could return to work. The applicant alleges that this kind of thing was said to her three or four times between January and May 2006.

b. It is also alleged that a union representative asked her if she wished to go on disability in January 2006.

c. It is alleged that on one occasion the respondent McLean asked her if she was a lesbian, a person of colour or a person with a disability.

d. It is alleged that one of the individual union respondents said to the applicant in a loud voice in front of others that the applicant had been seen swinging a knife.

e. It is alleged that an individual who may have been a union official but who has not been named as a respondent made an allegedly discriminatory comment that Spanish people do not know what they are talking about, and that French people are intelligent – they know what they are talking about, or words to that effect.

Section 45.1 and Abuse of Process

[22] The union respondents’ primary position was that the union Application should be dismissed pursuant to s. 45.1 of the Code because its substance has been appropriately dealt with in another proceeding, that being the DFR application which was filed at the OLRB by the applicant and which was dismissed by the OLRB. The respondents state that being called on to respond to and re-litigate the same allegations in this Application would be an abuse of process.

[23] Section 45.1 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.

[24] The union respondents state that all of the allegations were appropriately dealt with by the OLRB because all of the same allegations were made there by the applicant and the union was called on to respond to them. The union respondents acknowledge that the applicant appears not to have pressed all of her allegations to decision in the OLRB proceeding but that should not affect the outcome. The applicant chose to file a DFR application and had carriage of it throughout. She chose to narrow her claims there and should be bound by her choice of litigation strategy.

[25] In her application at the OLRB the applicant raised all of the issues raised in the union Application – the allegations made in the two proceedings are indistinguishable. There is no doubt, state the union respondents, that the OLRB had the authority to deal with all of the issues initially raised by the applicant. In the respondent union’s submission, s. 74 of the LRA has been held to include all of the protections of the Code. Moreover, in the union respondents’ submission, the OLRB has the power, indeed the duty, to consider the Code as it might arise in a matter before it.

[26] The applicant states that the union Application should not be dismissed because the Union did not adequately represent her, took the employer’s side and discriminated against her.

[27] There is no doubt that an application before the OLRB is a proceeding within the meaning of section 45.1 of the Code. It is also clear that the allegations in this Application are indistinguishable from the allegations made against the union respondents in the DFR. As the Tribunal has noted on more than one occasion, s. 74 of the LRA includes protections from discrimination on Code grounds. See [Dunn v. Sault Ste. Marie (City), 2008 HRTO 149](https://www.minicounsel.ca/hrto/2008/149). Therefore, having raised all of the same allegations in the DFR, there is no question that the OLRB could have determined the issues raised in this Application.

[28] The question is whether the Tribunal should exercise its discretion to dismiss the union Application pursuant to the authority granted in section 45.1. This involves a consideration of whether or not the substance of this Application was appropriately dealt with in the other proceeding and, if this is a different question, whether it would be an abuse of process for this Application to proceed further.

[29] The question arises in this way because, while the substance of this Application was raised before the OLRB, it appears that during the course of that proceeding the applicant narrowed her case and appears to have chosen not to proceed with many of her allegations.

[30] A brief description of the proceeding at the OLRB provides the backdrop to the issue. The DFR was filed in September 2006, about the same time as the Complaint. The parties, including the respondent employer who intervened in the DFR, attended a mediation at the OLRB on December 18, 2006, during which an agreement was reached where the applicant agreed to attend a medical assessment and the union would proceed with her grievances. The parties asked that the DFR be adjourned sine die. However the applicant wrote to the OLRB on December 20, 2006, and asked that it re-open her case.

[31] In a decision dated January 11, 2007, the OLRB directed the applicant to clarify what she was alleging and the remedies that she was seeking because it did not understand what the case was about based on the application form, which was bereft of detail, and the accompanying “sheaf of documents,” which appears to have been an undifferentiated bundle of documents. As in the instant Application, the applicant had filed with the Board a large number of documents including emails, notes of meetings, statements of her position and other documents from which it would be virtually impossible, without benefit of the Complaints underlying these Applications, to be sure what the case was about. The applicant was directed by the OLRB to set out all of the acts or omissions of the respondent union that she alleged were in violation of s. 74 of the LRA and in a separate document all of the orders and directions she was seeking.

[32] The applicant apparently complied with this direction. However, it is entirely unclear what the applicant asked the OLRB to deal with because the documents the applicant was directed to file were not produced in this Application. The union respondents have never seen this material and the applicant has not identified them in her considerable documentary production. On this point, while the applicant concedes that she raised all of the same issues before the OLRB that are raised here, she was unable to say what she ultimately asked the OLRB to deal with.

[33] Based on the OLRB’s final decision it does appear that the focus of the DFR proceeding from then on centred on the representation issues and whether or not the union respondents had filed grievances on behalf of the applicant. The OLRB determined that in those respects the applicant had not violated the LRA and in brief reasons dismissed the applicant’s DFR application. It does not appear that the allegations of discriminatory comments by some union officials, although alleged by the applicant in the DFR, were pressed to decision by the applicant.

[34] The question becomes whether the substance of this Code Application can be said to have been appropriately dealt with by the OLRB where at least some of the applicant’s claims were not ultimately pursued to a decision. The position of the union respondents is that it was open for the applicant, in response to the direction of the OLRB, to maintain all of her complaints against the Union. Having chosen to narrow the scope of her complaint, and having had her complaint resolved on that basis, it is not open to the applicant to re-litigate the same case against the Union at the Tribunal. In the respondent union’s view, the applicant made strategic litigation decisions about how her complaint against the union respondent would move forward, and she is bound by the effects of those decisions.

[35] The union respondents also submit that s. 45.1 does not require that the substance of the application have been appropriately “decided” but rather that it was appropriately “dealt with.” In the submission of the Union respondents, the words “dealt with” can accommodate any number of resolutions to a dispute. For example, there will be instances, as in settlements, where the complaint has been “dealt with” without having been adjudicated on the merits. In those circumstances as well, it is possible to find that the complaint was “appropriately dealt with”, even though there has been no consideration of human rights legal principles at all.

[36] In the respondent union’s view, this analysis of the meaning of s. 45.1 allowed the Tribunal to come to the conclusions it did in Dunn, supra, which involved the settlement of a DFR application at the OLRB. The union respondents state that in Dunn there was no adjudication of the substance of the human rights claim at all, but rather a decision by the applicant in that case to resolve the dispute by another means – a final and binding settlement. The union respondents state that in this case, the applicant raised the entire substance of this Application in the DFR and appears to have chosen at a late stage to not pursue some elements of her human rights claims and focus instead on others. The union respondents state that the applicant should be held to her choices and the consequences of those choices in the same way that a party to a settlement is bound by the choice to settle and is not entitled to require the other parties to the settlement to respond again to the same allegations.

[37] The respondent union states that the manner in which the OLRB dealt with the substance of the matter before it was appropriate and fair in the circumstances. The OLRB’s direction to the applicant that she set out in writing her allegations and what she was seeking was appropriate and fair for all the parties. It was fair to the applicant, to ensure that her complaint would be properly understood by the OLRB which found her original “sheaf of documents” confusing, and it was fair to the union respondents to sort out what they needed to respond to, as opposed to a complaint where allegations against them are confused with a variety of allegations against the respondent employer. The respondent union states that it would have been unfair and inappropriate for the Vice-chair to consider the DFR complaint on the merits without giving the applicant an opportunity to articulate the nature of her complaints. It appears that when the applicant re-articulated her complaint against the union respondents she narrowed its scope. In the respondent union’s submission, when the OLRB determined the DFR complaint, it did so fairly, based on the narrowed complaint submitted by the applicant and appropriately considered the complaint before it and came to a reasonable conclusion in respect of that complaint.

[38] I agree with the submissions of the union respondents. I find that the substance of this Application has been appropriately dealt with in the OLRB proceeding. I find that section 45.1 is designed at least in part to capture the legal rules which prohibit re-litigation of issues. I find in the circumstances of this case that the attempt by the applicant to re-litigate before the Tribunal issues that were raised in the DFR and could have been pressed by her to a decision constitute an abuse of process.

[39] In [Campbell v. Toronto District School Board, 2008 HRTO 62](https://www.minicounsel.ca/hrto/2008/62), the Tribunal discussed in a tentative way an approach to take in considering whether a another proceeding had appropriately dealt with the substance of an Application before it:

In addition to issue estoppel and abuse of process, section 45.1 provides a basis for the Tribunal to preclude the re-litigation of issues that have been dealt with in another forum. This provision, along with other parts of the Code, gives expression to a legislative intention to avoid the duplication of proceedings. The meaning to be given to section 45.1 remains to be developed by this Tribunal, and it is unnecessary to give any definitive opinion on it here. My conclusion for the purposes of this case is that section 45.1 provides a discretion to the Tribunal which is at least as broad as the doctrines of issue estoppel and abuse of process. On the facts of this case, the bases for my finding that abuse of process applies to prevent the re-litigation of certain issues equally support the application of section 45.1.

Did the SET appeal appropriately deal with the substance of the application? On this question, I find the following excerpt from the decision in Villella (citation omitted) of assistance:

On its face, s. 27(1)(f) requires the Tribunal to make a determination as to whether the substance of the complaint was appropriately dealt with. This necessitates some kind of examination of the decision arising out of the other proceeding. The question arises as to the nature of the examination contemplated by s. 27(1)(f).

In considering this question, I have found it helpful to consider the definitions of "substance" and "appropriately". The Concise Oxford Dictionary defines "substance", so far as is relevant to the usage under consideration, as follows:

theme, subject, material as opposed to form ... 4. essential nature ...; essence or most important part of anything, pith, purport, real meaning; … generally, apart from details. ...

"Appropriate" is defined as follows:

… belonging or peculiar (to); suitable or proper (to, for); hence ~ly …

These definitions suggest that in considering whether the substance of a complaint has been appropriately dealt with, the Tribunal should consider whether the complaint, in its essence or pith, was dealt with in a manner suitable or proper to that essence or pith. This, in turn, suggests that the appropriate manner of dealing with a complaint may differ depending on the essential nature of the complaint in issue. Further, the Tribunal should be concerned with the substance as opposed to the form of the manner in which the complaint was dealt with, focusing on the substance as opposed to the details of the matter. The question is not, as submitted by Mr. Villella, whether the complaint was decided correctly in the other forum.

(paras. 14-19).

The above suggests to me that the question of whether a matter has been dealt with “in substance” does not turn on technical considerations, nor is it dependent on the kind of criteria applied under legal doctrines such as issue estoppel. Further, a decision about whether a matter has been dealt with “appropriately” does not require this Tribunal to be satisfied that it would have reached the same conclusion as that reached in the other forum. Section 45.1 does not require the Tribunal to act like an appellate court.

[41] In my view, s. 45.1 should be interpreted in light of these facts. I have also concluded that there is nothing in the language of the section which suggests that it was intended to alter or in some way truncate the common law rules seeking to prevent relitigation, so that even if it is not co-extensive with those rules they remain to be applied where appropriate.

[44] In the Court of Appeal’s reasons, endorsed by the Supreme Court, Doherty, J. discussed the importance of finality in decision making at paragraphs 79-81:

Finality is essential to the maintenance of a fair and effective adjudicative process. The values it serves are fundamental to that process and to the community. Firstly, relitigation raises the spectre of inconsistent results. Such results create a myriad of problems for those involved in the proceedings, including, but not limited to those arising from attempts to enforce conflicting orders. Inconsistent results are also capable of bringing the administration of justice into disrepute in the eyes of reasonable and well informed members of the community. ( …)

Secondly, relitigation diminishes the overall authority of the adjudicative process. What value is a result if that result can be challenged and relitigated in another forum at any time? Thirdly, relitigation breeds uncertainty. How can those drawn into the adjudicative process determine when they have reached the end of that process, get on with the rest of their lives and arrange their affairs in reliance on the decisions reached in that process? Finally, relitigation drains individual and institutional resources. Neither individuals, nor the community as a whole, have the resources or the lifespan required to permit the continual relitigation of decided issues.

In emphasizing the importance of finality, I do not pretend that the decision made in the first proceeding is always correct. It must, of course, be observed that relitigation is not a guarantee of a more accurate result. The simple truth is that finality is so essential that it is routinely given priority over the possibility that relitigation would achieve a more accurate result. The importance of finality is best seen in those cases where finality has trumped individual constitutional rights: Reference re Manitoba Language Rights, 1985 CanLII 33 (SCC), [1985] 1 S.C.R. 721, 19 D.L.R. (4th) 1; R. v. Thomas, 1990 CanLII 141 (SCC), [1990] 1 S.C.R. 713, 75 C.R. (3d) 352; and R. v. Sarson, 1996 CanLII 200 (SCC), [1996] 2 S.C.R. 223, 107 C.C.C. (3d) 21. In those cases, even though the decision is wrong in the most important sense in that it denies someone a fundamental right, the courts have held that finality precludes relitigation. A desire to avoid the harm caused by permitting relitigation is given paramountcy over the rights of the individual and the accuracy of the result in the particular case.

[45] As noted above, the Supreme Court largely endorsed the Court of Appeal’s opinions but held that the doctrines of res judicata, estoppel, collateral attack, and abuse of process were adequate to prevent improper relitigation so that there was no need to create, as the Court of Appeal had done, a new freestanding “finality principle”.

[46] The Supreme Court concluded that in the circumstances before it the attempt to relitigate the grievor’s criminal conviction was an abuse of process. In discussing the doctrine of abuse of process, the Court noted that there is nothing improper in challenging a decision; rather, the issue is the proper place for that challenge to be heard. Where as in this case the applicant has chosen to take her case to a particular tribunal and received a final decision, the proper remedy if she believed that the decision was incorrect was an application for judicial review of the OLRB’s decision. As the Supreme Court observed at paragraph 46:

(…) A desire to attack a judicial finding is not in itself an improper purpose.

The law permits that objective to be pursued through various reviewing mechanisms such as appeals or judicial review. Indeed, reviewability is an important aspect of finality. A decision is final and binding on the parties only when all available reviews have been exhausted or abandoned. What is improper is to attempt to impeach a judicial finding by the impermissible route of re-litigation in a different forum. Therefore, motive is of little or no import.

[47] In this regard I also note and adopt the comments of the Tribunal in Campbell, supra, about the motivations of a party in these circumstances:

There may be various reasons why an individual may seek to conduct litigation of the same or similar issues in different forums, or to challenge a prior adjudicative finding through another proceeding. In the case before me, it is apparent that the complainant’s mother is deeply concerned for her son’s education and life opportunities. Presented with the challenges of her son’s disability, it is perhaps no surprise that she would seek relief wherever she may find an opportunity. To call her endeavour an “abuse of process” is not to conclude that she has acted oppressively or abusively, or that she is driven by malice or bad faith. As I have indicated, abuse of process is a legal doctrine whose focus is the integrity and coherence of the adjudicative process. (emphasis added)

[48] The Supreme Court continued its consideration of the doctrine of abuse of process in preventing relitigation at paragraphs 37-38:

In the context that interests us here, the doctrine of abuse of process engages “the inherent power of the court to prevent the misuse of its procedure, in a way that would (. . .) bring the administration of justice into disrepute” (Canam Enterprises Inc. v. Coles (2000), 2000 CanLII 8514 (ON CA), 51 O.R. (3d) 481 (C.A.), at para. 55, per Goudge J.A., dissenting (approved [2002] 3 S.C.R. 307, 2002 SCC 63)). Goudge J.A. expanded on that concept in the following terms at paras. 55-56:

The doctrine of abuse of process engages the inherent power of the court to prevent the misuse of its procedure, in a way that would be manifestly unfair to a party to the litigation before it or would in some other way bring the administration of justice into disrepute. It is a flexible doctrine unencumbered by the specific requirements of concepts such as issue estoppel. See House of Spring Gardens Ltd. v. Waite, [1990] 3 W.L.R. 347 at p. 358, [1990] 2 All E.R. 990 (C.A.). (…)

One circumstance in which abuse of process has been applied is where the litigation before the court is found to be in essence an attempt to relitigate a claim which the court has already determined. [Emphasis added.]

(…) The policy grounds supporting abuse of process by relitigation are the same as the essential policy grounds supporting issue estoppel (Lange, supra, at pp. 347-48):

The two policy grounds, namely, that there be an end to litigation and that no one should be twice vexed by the same cause, have been cited as policies in the application of abuse of process by relitigation. Other policy grounds have also been cited, namely, to preserve the courts’ and the litigants’ resources, to uphold the integrity of the legal system in order to avoid inconsistent results, and to protect the principle of finality so crucial to the proper administration of justice.

[49] At paragraphs 51 to 53, Arbour J. explained why a multiplicity of proceedings undermines the integrity of the adjudicative process:

Rather than focus on the motive or status of the parties, the doctrine of abuse of process concentrates on the integrity of the adjudicative process. Three preliminary observations are useful in that respect. First, there can be no assumption that re-litigation will yield a more accurate result than the original proceeding. Second, if the same result is reached in the subsequent proceeding, the re-litigation will prove to have been a waste of judicial resources as well as an unnecessary expense for the parties and possibly an additional hardship for some witnesses. Finally, if the result in the subsequent proceeding is different from the conclusion reached in the first on the very same issue, the inconsistency, in and of itself, will undermine the credibility of the entire judicial process, thereby diminishing its authority, its credibility and its aim of finality.

In contrast, proper review by way of appeal increases confidence in the ultimate result and affirms both the authority of the process as well as the finality of the result. It is therefore apparent that from the system’s point of view, relitigation carries serious detrimental effects and should be avoided unless the circumstances dictate that relitigation is in fact necessary to enhance the credibility and the effectiveness of the adjudicative process as a whole. There may be instances where relitigation will enhance, rather than impeach, the integrity of the judicial system, for example: (1) when the first proceeding is tainted by fraud or dishonesty; (2) when fresh, new evidence, previously unavailable, conclusively impeaches the original results; or (3) when fairness dictates that the original result should not be binding in the new context. This was stated unequivocally by this Court in Danyluk, supra, at para. 80.

The discretionary factors that apply to prevent the doctrine of issue estoppel from operating in an unjust or unfair way are equally available to prevent the doctrine of abuse of process from achieving a similar undesirable result. There are many circumstances in which the bar against relitigation, either through the doctrine of res judicata or that of abuse of process, would create unfairness. If, for instance, the stakes in the original proceeding were too minor to generate a full and robust response, while the subsequent stakes were considerable, fairness would dictate that the administration of justice would be better served by permitting the second proceeding to go forward than by insisting that finality should prevail. An inadequate incentive to defend, the discovery of new evidence in appropriate circumstances, or a tainted original process may all overcome the interest in maintaining the finality of the original decision.

[50] As can be seen from the reasons of the Courts above, the underlying policy rationales for preventing re-litigation are systemic in nature and focus on the integrity of the system as a whole. The question is not whether the result in the first instance was correct or not - relitigation does not guarantee a correct result. Similarly, the importance of the question being determined is not a consideration; relitigations of incorrect determinations of constitutional rights are no more likely to be permitted than any other issue. Rather the focus is ultimately whether there are compelling reasons in a given case to allow the matter to be relitigated.

[51] Returning to s. 45.1 for a moment, there is nothing in its language that suggests a different purpose than articulated by the Courts above or that the legislature intended to truncate or alter in some material way these general legal rules. Indeed the language is broad and open ended and I find was intended to provide the Tribunal a broad discretion to consider all of the various ways in which human rights issues can arise and be determined.

[52] It seems to me clear, as was held in Campbell, supra, that the section was intended to prevent relitigation. I respectfully do not agree with those decisions which have interpreted s. 45.1 as permitting relitigation where, in the Tribunal’s opinion, the issues raised were not decided correctly. It seems to me unlikely that the Legislature intended an interpretation of the section that invites forum shopping and the relitigation of issues previously dealt with by decision makers with a concurrent or exclusive jurisdiction over the dispute.

[53] It also seems to me that an interpretation of the section that contemplates the review of decisions of other tribunals raises significant questions about the proper role of this Tribunal as an administrative tribunal amongst many others where human rights issues arise for decision. For these reasons it seems to me that the more likely intent of the section is to codify the common law rules respecting relitigation rather than an interpretation that creates a review or appellate-like role for the Tribunal.

[54] I find that where a party has previously brought essentially the same case before a decision maker with the authority to deal with the entire substance of the case, s. 45.1 will be available to prevent the relitigation of that case before the Tribunal. I also find, following Campbell, supra, that the substance of an application is its essential nature and not the toting up of the particular allegations.

[55] The essential nature of the union Application is the allegations that, because the union respondents perceived her to be a person with a disability, they treated the applicant differently in their representation of her, including perhaps not filing grievances on her behalf. This is essentially the same case as was launched and pursued to a decision in the DFR proceeding.

[56] What effect does the narrowing of the scope of the DFR have on the result? I agree with the respondent union’s submissions on this point. The applicant chose to proceed with the DFR. The entire substance of the union Application was raised in that proceeding. The applicant made choices about what she ultimately pressed before the OLRB for decision. I see no reason why an applicant, having chosen another forum in which to raise the same case and who then chooses to narrow its scope, should be permitted to bring the case again to the Tribunal.

[57] In any event a party is normally expected to bring their entire case forward and not split it up into several pieces, adding to the cost and uncertainties associated with duplicative litigation. Such a scenario engages the underlying policy rationales for the rules against relitigation articulated by the courts above: the potential for inconsistent results, prolonged uncertainty for the parties, as well as the drain on institutional and individual resources resulting from this re-litigation of the same case. See as well Danyluk v. Ainsworth Technologies Inc., supra. That is not to say that there are not circumstances where different considerations might apply. I need not decide what might be an appropriate circumstance for splitting up a case; however, one might imagine it appropriate not to apply s. 45.1 and dismiss an application where the parties to the other proceeding expressly acknowledged that not all of the issues were to be determined there, or where the nature of the underlying issues does not afford the applicant a real choice of forum.

[58] I have found that the essential nature of the union Application was raised in the DFR. Was it dealt with appropriately there? As indicated earlier I do not interpret s. 45.1 as authorizing detailed scrutiny of the other decision in considering this question. As I have previously indicated, s. 45.1 does not require that the previous issue be appropriately decided but rather appropriately dealt with. This shifts the focus away from outcomes to processes and is consistent in my view with the approach outlined in CUPE, supra. As indicated above, the policy concerns underlying the limits on relitigation are not that the correct result be achieved in a given case but concerns with the integrity of the system as a whole. To consider just one of these policy concerns, what for example do the parties do when relitigation results in contradictory awards of decision makers whose decisions are final and binding? If a party believes the decision in the other proceeding was incorrectly decided, then the proper approach as indicated by the Supreme Court in CUPE, is whatever appeal or review might lie from that decision, not a collateral attack on the decision before this Tribunal.

[59] Section 45.1 grants the Tribunal a discretion to dismiss an application in the described circumstance. If the substance or essential nature of the cases are the same, whether or not the case was appropriately dealt with will require a consideration of the process that was engaged in the other proceeding, including a consideration of the jurisdiction of the other decision maker. Other factors that should be considered when faced with this question would be those that the courts have considered when exercising the discretion to allow a party to re-litigate.

[60] The Court of Appeal in CUPE, supra, discussed the factors which should govern the exercise of this discretion at paragraphs 94-95:

As important as finality is in the adjudicative process, it does not always block relitigation. Finality concerns must be tempered by a search for justice in each individual case. Sometimes, finality will yield completely to the interests of an individual litigant. For example, if subsequent to a final decision, new evidence is discovered which conclusively demonstrates that a finding of fact made in the first proceeding was incorrect, the justice of that case could demand an opportunity to relitigate. The integrity of the adjudicative process, the rationale underlying finality, may not be served by adhering to an undeniably erroneous decision. Similarly, if an initial decision is obtained by fraud or other dishonest practice, relitigation must be allowed. In those cases, relitigation restores the integrity of the adjudicative process.

The balancing of finality concerns with the individual litigant’s claim to access to justice is best seen in recent res judicata jurisprudence. This court has held that the traditional criteria set out in the res judicata doctrine provide the starting point for an analysis of any claim that a prior determination precludes relitigation. If those criteria are met, relitigation will be foreclosed in the vast majority of cases. However, even where the criteria are met, a court or tribunal may refuse in exceptional circumstances to apply the doctrine and may permit relitigation where the circumstances dictate that finality interests should yield to the justice of the individual case: Danyluk v. Ainsworth Technologies Inc., supra, at paras. 62-67 (S.C.C.); Minott, supra; Schweneke v. Ontario, supra; Ontario (Attorney General) v. Bear Island Foundation et al. 1999 CanLII 9307 (ON C.A.), (1999), 126 O.A.C. 385 at 392-93 (C.A.); D.J. Lange, The Doctrine of Res Judicata in Canada, (Butterworths, 2000) at pp. 31-34.

[61] I have considered whether there are factors at play here that might cause this discretion to be exercised in another way. After careful consideration I find that there are none. To begin with it is clear as indicated earlier that the OLRB had complete authority to deal with the substance of this Application. This will not always be the case, but in this instance it was. There is also no indication whatever that the applicant’s choice about what to finally pursue before the OLRB was coerced in any way. The applicant did not claim that the narrowing of the issues she engaged in was anything other than voluntary. It is important to note that the applicant could have chosen not to file a DFR application. She could have chosen only to proceed with the human rights complaint rather than engage two proceedings. Moreover, the applicant had complete carriage of the DFR complaint; decisions she made about how to proceed were hers and hers alone. There is no new evidence that was not reasonably available to the applicant which might have affected the outcome of the OLRB proceeding. Nor is there any suggestion that the procedures followed by the OLRB in dealing with the issues raised before it were flawed or unfair.

[62] I find that for all of these reasons the substance of the union Application was appropriately dealt with in the DFR proceeding and that it should be dismissed under s. 45.1. Alternatively, if s. 45.1 is not co-extensive with the doctrine of abuse of process, I find that the substance of the union Application has previously been raised in the DFR proceeding and that it would be an abuse of process for it to continue to a hearing on the merits before the Tribunal, and for this reason as well it should be dismissed.

No Prima Facie Case

[63] I also find that the complaint underlying the union Application discloses no prima facie case of discrimination on any of the Code-protected grounds alleged by the applicant. As already indicated, the essence of the claim the applicant makes is that she was unfairly represented by the union respondents and she claims the reasons for this unfair representation include considerations of her race, place of origin and a perceived disability. However, as conceded by the respondent union, the allegations with respect to what the applicant characterizes as offensive conduct may not have been before the OLRB for decision.

[64] The union respondents state that the allegations of the applicant are generally incoherent and oftentimes bizarre. As a result they are difficult, and in some cases impossible, to respond to. For example, she asserts on several occasions that a supervisor was trying to kill her and then states on several occasions that it was the respondent McLean’s job to prevent the supervisor from killing her. On another occasion the applicant alleges that respondent McLean and her supervisor conspired in a plan to kill her. The union respondents submit that this essential incoherence and lack of credibility in some, if not most, of the allegations made should be taken into account by the Tribunal in considering whether or not they disclose a prima facie case of discrimination.

[65] While I agree with the union respondents’ submission that the applicant’s allegations are sometimes incoherent and difficult to imagine in some instances, care must be taken in dismissing them as incredible at this stage. For purposes of this determination I have assumed, with one exception, that the allegations that can be understood are capable of being proved.

[66] In [Jagait v. IN TECH Risk Management, 2009 HRTO 779](https://www.minicounsel.ca/hrto/2009/779), the Tribunal set out its approach when considering requests to dismiss an application because it does not disclose a prima facie case:

The onus is on the applicant to establish a prima facie case of discrimination. A prima facie case is one which covers the allegations made and which, if they are believed, is complete and sufficient to justify a finding in the applicant’s favour in the absence of an answer from the respondent: see Ontario Human Rights Comm. v. Simpson Sears, 1985 CanLII 18 (S.C.C.) at para. 28. Upon establishing a prima facie case, the burden shifts to the respondent to provide a credible and rational explanation demonstrating, on a balance of probabilities, that its actions were not discriminatory.

[67] The failure to represent a union member is not, in and of itself, a breach of the Code. See [Arias v. Centre for Spanish Speaking Peoples, 2009 HRTO 1025](https://www.minicounsel.ca/hrto/2009/1025). In [Traversy v. Mississauga Professional Firefighters’ Association, 2009 HRTO 996](https://www.minicounsel.ca/hrto/2009/996), the Tribunal held as follows:

(….) a claim that the union violates the Code must be based on an assertion of differential treatment, and not simply a failure to act. The failure or refusal to take forward a human rights issue such as accommodation of a disability in the workplace is not, in and of itself, a breach of the Code. There must be a claim, and a factual foundation for the claim, that the failure to act was based on discriminatory factors.

[68] In [Prescod v. United Steelworkers Local 7135, 2010 HRTO 2054](https://www.minicounsel.ca/hrto/2010/2054), the Tribunal considered this issue in another case where the allegations were against union respondents:

To establish a prima facie case, the applicant must do more than make allegations which, if true, would result in a finding of discrimination or harassment under the Code in the absence of a defence from the respondent. The applicant must also make a case “which covers the allegations made”. At the stage of determining whether the applicant has made a prima facie case, the applicant does not have to prove the allegations. However, the applicant must be able to demonstrate that the allegations are credible and that there is evidence available which will require an explanation from the respondent.

[69] The union respondents state that there are no credible allegations contained in the Complaint that could support the conclusion that the Code has been violated. The union respondents state that the great preponderance of the applicant’s allegations amount to a claim that the union did not adequately represent her in her disputes with the employer – essentially allegations that they have failed to act. The union states that more than that is required and that in this case the applicant makes no allegation of differential treatment in respect of these issues. The applicant may have been unhappy with her representation, but without an allegation that she was treated differently because of her race, place of origin or a perceived disability, the Code is not engaged and there is no case to respond to.

[70] The other category of allegation was characterized by the union respondents as allegations of offensive actions by various union respondents. The union respondents state that some of these allegations reflect the union simply doing its job in an appropriate manner and attempting to elicit information from the applicant or to provide advice to her. Others of these allegations are simply not credible according to the union respondents and they should not be called upon to respond to them.

[71] I agree with the union respondents that the great preponderance of the allegations in the complaint are essentially that the union’s representation of the applicant was inadequate – that they failed to act by not wanting to meet with her when she attended at the union’s offices, not returning phone calls, etc. I note again that notwithstanding these allegations, it is evident on the face of the complaints that the applicant had ready access to the union respondents, who seem to have spent a considerable amount of time and energy dealing with the applicant’s concerns. There is reason to doubt the credibility of many of the applicant’s claims of indifferent or inadequate treatment of her in this respect.

[72] However, even assuming that these allegations of inaction are all capable of being proven, they entirely fail to engage the Code in the absence of any allegation of differential treatment. There are no allegations, credible or otherwise, in the complaint that the applicant was treated any differently than any other member of the bargaining unit in the union’s representation of her on the basis of prohibited ground in the Code.

[73] I asked the applicant several times at the hearing to explain how she was treated differently than others in this respect. The applicant replied only that she believed that the union returned the calls of a colleague more often than hers. I am not satisfied that there is anything to be answered by the respondents in respect of the allegations of unfair or inadequate representation of the applicant by the union respondents.

[75] The applicant’s allegations in this regard are that the union respondents advised the applicant that in order for her to return to work the employer was requiring that she attend an IMA. That this was the employer’s position is not disputed by either set of respondents; it is clear on the face of the documents filed by the parties and indeed the scheduling of an IMA was agreed to by all parties at the OLRB mediation in December 2006.

[76] I am not satisfied that any of these allegations require a response from the union respondents. It is important to note that most of the alleged remarks are not themselves discriminatory, but the applicant asks that an inference be drawn from them that the applicant was being treated differently in whole or in part because of her race, place of origin and a perceived disability. I have carefully considered these allegations and assuming that they are capable of proof, they do not either singly or taken together constitute discriminatory conduct on the part of the union respondents.

[77] The background is important here. The employer’s position on what was required of the applicant before she could return to work had been clearly articulated and was known to all. The union has filed a grievance over what the applicant characterizes as a suspension and it is going to hearing in May 2011. In any case, given the employer’s position at the time, it was reasonable for the union respondents to have told the applicant that, if she wanted to return to work, she might have to comply with the employer’s demand. I agree with the respondent union that it is impossible to infer from these kinds of comments and advice that either the union respondents were treating the applicant differently because they perceived her to be a person with a disability, much less than that their actions in this regard were informed by considerations of her race or ethnic origin. I fail to see, assuming these allegations to be true, how the Code is engaged by them.

[78] I find that other remarks or statements allegedly made by some of the union respondents fall into the same category of the kinds of things which a union official might reasonably have said and from which no inference of discrimination can be drawn. See [Pinder v. Ontario Secondary School Teachers Association, 2010 HRTO 1863](https://www.minicounsel.ca/hrto/2010/1863). This would include a union official asking the applicant, after she had been asked to leave work by the employer, whether she wanted an application for Long Term Disability benefits and at another point in time (May 2005 or 2006) being asked by another union official if she were a lesbian, a person of colour or a person with a disability. It is not discrimination under the Code for a trade union official to ask an employee who has been put out of service by an employer for allegedly medical reasons if they want to access income replacement benefits available to them under the contract of employment. Similarly, a union official who is dealing with a general claim of harassment might reasonably inquire about the nature of the alleged harassment.

[79] Another allegation of a similar character is that the respondent Hutchinson said in front of others that the applicant had been seen swinging a knife. If said in the manner suggested, it might be considered insensitive and inappropriate on Hutchinson’s part, but does not engage any of the Code grounds alleged by the applicant. The allegation that the applicant had been seen with a knife was one that had been made by the respondent employer and was being relied upon in discipline imposed and grieved by the union on behalf of the applicant. Given those circumstances, it is not possible to infer differential treatment in respect of the remark.

[80] The applicant makes other allegations of what might be considered offensive remarks, if actually said, but even if true do not engage the Code. In this category I would include the allegation that the respondent McLean said in response to the applicant claiming that the employer respondent handed her a disciplinary letter just before the applicant went to hospital because they thought that the applicant might die: “Nohemy if you died they would send you flowers and then they will forget”. The respondent union says that the allegation is so bizarre that it ought not be accepted as capable of belief. While there is some merit to this proposition, even if the allegation is capable of being proved it is unclear how this kind of remark engages the Code.

[81] There is one remaining allegation in the Complaint that, if capable of proof, could engage the Code. As indicated above the applicant asserts that during the course of, or just prior to a meeting with the employer, a union representative took the applicant aside and said “French people are intelligent, we know what we are saying, Spanish people they don’t know what they are talking about, maybe later they can understand what they are saying.”

[82] The union respondents state that this allegation is not credible - the remark out of the blue in the course of a disciplinary meeting and being a propos of nothing is simply incapable of belief. The union respondents also state that, if it was said, it is remarkably offensive and it is unlikely that the applicant would ever want to deal with the individual. However, it is clear on the face of the Complaint that the applicant had other dealings with this individual, at one point contacting her to ask for advice about her ongoing disputes with the respondent employer.

[83] In this particular instance, I agree with the union respondents that this allegation is not credible. I have considered this question against a backdrop of what are often extravagant allegations, some of which are described above, such as the allegation that the respondent McLean was conspiring with the applicant’s supervisor to kill her. I have also considered the fact that this allegation is unique in many respects and it is entirely unrelated to the ongoing disputes in which the applicant was involved at the time, unlike all of the others of these allegations, all of which relate in some way or another to her ongoing issues with the employer. This one allegation is as indicated out of the blue and a propos of nothing. On the face of it, it is a bizarre allegation and the context inexplicable. Why for example would the union respondent take the applicant aside in the course of a meeting with management to say such a thing – there is nothing in any of the material that contextualizes or makes sense of such a remark.

[85] For these reasons I would also dismiss the Union Application because it disclosed no prima facie case of discrimination.

Order

[86] For all of these reasons the Application against the Union respondents is dismissed.

Other Matters

[87] As became clear at the hearing of this matter on January 21, 2011, the grievances of the applicant which relate to key issues in the employer Application are proceeding to arbitration in May 2011. The parties’ views on the appropriateness of deferral have been canvassed once before and all parties indicated that they did not consider it appropriate.

[88] The position of both sets of respondents was that further delay in the adjudication of this matter would cause them significant prejudice. The union respondents also stated that there was little overlap between the grievances and the allegations in the union Application. The applicant agreed that the Applications should proceed.

[89] I accept the union respondents’ position that there is little overlap between the issues in the grievances and the allegations in the union Application; however, for the reasons set out above, I have dismissed the union Application with the result that the question is moot as it relates to the union respondents.

[90] The employer Application remains ready to proceed to hearing. Dates have been set in June 2011. The grievance arbitration begins in May. It seems to me that there is a considerable identity of factual issues in dispute in both the employer Application and the grievance. It makes little sense to have the two proceedings running concurrently, raising the possibility of inconsistent findings of fact and law on key common issues as well as the potentially unnecessary use of institutional and private resources. To this point I have concurred in the parties’ views on this matter; however, upon reflection I remain concerned with the spectre of two proceedings running in parallel with the same witnesses testifying about the same events.

[91] Accordingly, I direct the employer respondent and the applicant, and the trade union as representative of the applicant in the grievance if it wishes, to provide their written submissions on the deferral issue within 14 days of the date of this Interim Decision.

[92] During the course of the first day of hearing the question of the trade union’s intervening in the employer Application arose. If the respondent union wishes to do so it shall file a Request to Intervene within 10 days of the date of this Interim Decision.

[93] I am seized of the employer Application.

Dated at Toronto, this 6th day of April, 2011.

“Signed by”

David Muir

Vice-chair

Cunningham v. CUPE 4400, 2011 HRTO 658

Case Summary