Yakymova v. Slovenian Linden Foundation, 2012 HRTO 1075

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jonathan Cann on behalf of Lyubov Yakymova

Applicant

-and-

Slovenian Linden Foundation and Service Employees International Union Local 1 Canada

Respondents

INTERIM DECISION

Adjudicator: Douglas Sanderson Date: May 30, 2012 Citation: 2012 HRTO 1075 Indexed as: Yakymova v.Slovenian Linden Foundation

APPEARANCES

Jonathan Cann, Applicant Self-represented

Slovenian Linden Foundation, Respondent Jacinthe Boudreau, Counsel

Service Employees International Union Local 1 Canada, Respondent Ken Evett, Representative

1This is an Application pursuant to section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant alleges discrimination in employment because of place of origin, disability, family status, age and reprisal.

2The applicant asserts the respondent Slovenian Linden Foundation (“SLF”) wrongly terminated Ms. Yakymova’s (the “claimant’s”) employment while she was on a medical leave of absence and harassed her both before and after the termination date. The applicant asserts that the respondent Service Employees International Union Local 1 Canada (the “Union”) discriminated against the claimant when managing her grievance and committed reprisals against her for asserting her rights under the Code.

3Both respondents filed a Response in which they deny the allegations. The SLF asserts that it terminated the claimant’s employment when, after many requests, she failed to provide medical documentation to support her continued absence. After discussions with the Union, SLF agreed to reinstate the claimant, but she refused to return to work. The Union states that it filed a grievance on behalf of the claimant when the respondent dismissed her, which resulted in an offer to reinstate her. The claimant declined reinstatement and wished to pursue a grievance seeking financial compensation. The Union decided not to pursue the grievance on her behalf because it concluded that it would not succeed.

4Both respondents sought the early dismissal of the Application because another proceeding has appropriately dealt with the matter. SLF asserts a decision of the Employment Insurance Board of Referees (the “EIBR”) dealt with the allegations against it. The Union asserts the matter was dealt with through the grievance procedure, pursuant to the collective agreement between SLF and the Union.

5The applicant filed a Reply wherein he argues that neither the EIBR proceeding nor the grievance process dealt appropriately with the substance of the Application.

6Section 45.1 of the Code provides:

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.

7Section 43(2) of the Code provides that the Tribunal shall not finally dispose of an application without affording the parties a chance to make oral submissions. Accordingly, in a Case Assessment Direction dated November 28, 2011, the Tribunal directed the applicant to state whether he wished to make oral representations to address the following issue:

Should the Application against the respondents be dismissed pursuant to section 45.1 of the Code as a result of the EIBR proceeding or the grievance procedure under the collective agreement between SLF and the Union?

8The applicant made a timely request to make oral submissions and the Tribunal held a preliminary hearing by teleconference on February 29, 2012.

The EBIR Proceeding

9The claimant was a housekeeper at SLF’s Don Lipa nursing home. In December 2010, she fell ill and was absent from work. She recovered from her illness, but was experiencing back trouble and required additional medical leave. The claimant claimed and received employment insurance sickness benefits. From late January to early March 2010, SLF states that it made several attempts to contact her to request medical information to support her continued absence, but did not receive a response. SLF considered the claimant to have abandoned her employment and dismissed her pursuant to a deemed termination clause in the collective agreement. The Union grieved the termination and SLF agreed to reinstate her. The claimant declined to be reinstated and applied to convert her employment insurance sickness benefits to regular employment insurance benefits on May 14, 2011. In support of her claim, the claimant filed submissions alleging that she had been subjected to harassment and discrimination because of disability, in violation of the Code, that resulted in a toxic work environment. She further asserted that SLF dismissed her because she was disabled and receiving sickness benefits.

10Human Resources and Skills Development Canada (“HRSDC”) refused the claimant’s claim for regular benefits because she voluntarily left her employment at Don Lipa without just cause within the meaning of the Employment Insurance Act. The claimant appealed the decision to the EIBR. The EIBR held a hearing on September 16, 2011, during which the claimant testified and was represented by the Labour Community Services of Peel. The EIBR found that the claimant was dismissed because SLF did not receive the medical documentation it requested, but was then offered reinstatement. The Union also asked for updated medical information to assist in returning the claimant to work. The EIBR found there was no basis for her claims of discrimination and reprisals under the Code. The EIBR also found there was no evidence of a toxic work environment in which disabled employees are unfairly targeted or treated in a differential manner. Consequently, the EIBR found that the claimant did not demonstrate just cause for voluntarily leaving her employment and dismissed the appeal.

Submissions

11SLF submitted that the EIBR appeal addressed all of the issues set out in the Application, which counsel summarized as follows:

• The claimant sent medical information to SLF to support her medical leave, but was dismissed during that leave;
• The claimant felt harassed by SLF’s requests for medical documentation;
• The Union also requested medical documentation after the termination of the claimant’s employment; and,
• SLF treated her differently because she was on a medical leave and terminated her employment because she was on medical leave.

12SLF noted that the EIBR did not specifically address the allegation set out in response to question A13 of the Application Form, that a vacation request was denied, but submitted that allegation did not amount to discrimination. However, to the extent the applicant alleges that the claimant was targeted because of age, place of origin, family status or age, SLF submitted that the EBIR dealt with these issues at the “macro level” in dealing with the issue of whether she left her employment without just cause.

13SLF stated that in support of her appeal to the EIBR, the claimant had stated that she did not resign her employment. Rather, SLF terminated her employment while she was on approved medical leave. She further alleged that SLF harassed her and discriminated against her because of disability and condoned a poisoned work environment of reprisal and discrimination. However, the EIBR found that there was no basis for the claimant’s accusations of discrimination under the Code and that there was no evidence of a toxic work environment that unfairly targets disabled employees. The EBIR found that SLF initially terminated the claimant’s employment because she (through her children) did not send in the required medical documentation and did not follow up to ensure it was received. The EBIR also found that SLF later offered the claimant reinstatement, but she declined because she felt harassed.

14SLF noted that section 29(c) of the Employment Insurance Act sets out the circumstances that may support a finding that an employee had just cause for voluntarily leaving employment. The circumstances include:

(i) sexual or other harassment;

(iii) discrimination on a prohibited ground of discrimination within the meaning of the Canadian Human Rights Act R.S.C. 1985, c H-6;

(xi) practices that are contrary to law.

Accordingly, SLF submitted that the EIBR was required to assess the circumstances of the termination of the claimant’s employment, including whether she was subject to human rights violations.

15SLF relied on the recent Supreme Court of Canada decision in British Columbia (Workers’ Compensation Board) v. Figliola, 2011 SCC 52. SLF submitted the decision provides guidance regarding how the Tribunal should exercise its discretion under section 45.1 of the Code, in particular that the Tribunal is not entitled to review the decisions of other adjudicative bodies. SLF submitted that the Figliola decision indicates that finality of decision making and avoiding re-litigation of issues are the principles embodied in section 45.1. SLF submitted that in Figliola, the Court set out two criteria for determining whether the substance of a complaint has been appropriately dealt with as follows:

• Whether the previously decided legal issue was essentially the same as what is being complained of to the Tribunal; and,
• Whether there was an opportunity for the complainant to know the case to be met and have the chance to meet it, regardless of how closely the previous process mirrored the one the Tribunal prefers or uses itself.

16SLF cited several Tribunal decisions that found that the Tribunal was bound by the Figliola decision regarding the interpretation of section 45.1 of the Code: Gilinsky v. Peel District School Board, 2011 HRTO 2024, Gomez v. Sobeys Milton Retail Support Centre, 2011 HRTO 2297 and Paterno v. Salvation Army, 2011 HRTO 2298.

17SLF submitted that the legal questions before the EIBR were the same as those currently before the Tribunal, i.e., whether the termination of the claimant’s employment amounted to discrimination. SLF submitted that she was aware of the case to be met at the EIBR and had the opportunity to give evidence and make submissions during the proceeding. Accordingly, SLF submitted that the EIBR had appropriately dealt with the substance of the Application when it ruled that the termination of the claimant’s employment was not connected to harassment or discrimination.

18The Union submitted that it relied on the claimant to provide evidence to support the grievance filed on her behalf. When she did not provide that evidence, the Union withdrew the grievance. The claimant had an opportunity to appeal the decision to withdraw her grievance and again provide evidence in support of it, but she did not attend the appeal. Consequently, the Union could not proceed with the grievance.

19The applicant submitted that the interpretation of section 45.1 involves answering two questions: was there another proceeding and whether the substance of the Application was appropriately dealt with. The applicant submitted that a proceeding requires a level of formality and safeguards for procedural fairness. Whether a matter has been appropriately dealt with is a case-by-case inquiry regarding the nature of the issues involved, the factual basis for those issues and whether human rights principles have been applied.

20The applicant submitted that no other proceeding dealt with the substance of the allegations asserted in the Application. In this regard, the applicant submitted that the issues identified in the EIBR docket were not the same as those set out in the Application and that the Union grievance process had inadequate procedural safeguards. In any event, the grievance was withdrawn without a settlement; therefore, the grievance procedure cannot be said to have dealt with anything.

21The applicant stated that there were two sets of allegation in the Application: pre-termination harassment and discrimination by SLF and post termination harassment and discrimination, including the termination of her employment and the Union’s decision to withdraw her grievance. The applicant submitted that the EIBR did not deal with the second set of allegations and did not deal with the allegation that SLF’s denial of a vacation request by the claimant amounted to discrimination because of place of origin. The applicant submitted that, in any event, no human rights issues were put to the EIBR.

22The applicant submitted that the EIRB’s mandate was to determine whether. the claimant was entitled to employment insurance benefits. Accordingly, the EIBR’s decision resolved the employment insurance issues, but not issues arising under the Code. There was no indication in the EIRB’s decision that the board considered whether the claimant’s condition came within the definition of “disability” under the Code. Similarly, there is no indication the EIRB considered issues of accommodation or undue hardship.

23The applicant sought to distinguish the Tribunal jurisprudence cited by SLF on the basis that the decision makers in those cases were Ministry of Labour labour arbitrators who have a clear mandate to deal with human rights issues. The applicant submitted there is no indication that referees hearing employment insurance appeals have any human rights training. The applicant submitted that the Figliola decision did not match the circumstances of this Application and submitted that the pre-Figliola cases were more on point. The applicant cited the following cases: Paterno v. Salvation Army, Centre of Hope, 2010 HRTO 10; Dunn v. Sault Ste. Marie (City), 2008 HRTO 149; Dupuis v. Religious Hospitallers of St. Joseph of Cornwall, 2010 HRTO 1079; Shannon v. Renfrew (County), 2010 HRTO 930’ Noble v. York University, 2009 HRTO 1201; Maurer v. Metroland Media Group, 2009 HRTO 200; and Mustafa v. Mississauga (City), 2010 HRTO 2477.

Analysis and Decision

24At issue in Figliola was the interpretation of section 27(1)(f) of the British Columbia Human Rights Code (the “B.C. Code”), which reads as follows:

27(1) A member or panel may, at any time after a complaint is filed and with or without a hearing, dismiss all or part of the complaint if that member or panel determines that any of the following apply:

(f) the substance of the complaint or that part of the complaint has been appropriately dealt with in another proceeding;

25The Supreme Court of Canada found that section 27(1)(f) of the B.C. Code was intended to ensure finality in decision making and to avoid re-litigation of issues. The section did not confer upon the B.C. Human Rights Tribunal the authority to review the processes and decisions of other tribunals. In assessing whether the substance of a complaint has been appropriately dealt with in another proceeding, the Court stated that a Tribunal should ask itself two questions:

“…whether the previously decided legal issue was essentially the same as what is being complained of to the Tribunal and whether there was an opportunity for the complainants or their privies to know the case to be met and have the chance to meet it, regardless of how closely the previous process mirrored the one the Tribunal prefers or uses itself…” (at paragraph 37).

26Section 27(1)(f) of the B.C. Code is nearly identical to section 45.1 of the Code and the Tribunal has found that the analysis adopted in Figliola applies in Ontario and binds the Tribunal. See Gomez, supra, at paragraph 25. The Tribunal has also found, in light of the Figliola decision, that the Tribunal’s earlier jurisprudence that suggested the Tribunal should consider whether the other proceeding applied proper human rights principles is no longer applicable. Accordingly, if a factual or legal finding in a previous proceeding makes it impossible for an application or part of it to succeed, then the application or part must be dismissed. See Paterno v. Salvation Army, supra, at paragraphs 24 and 25.

The EIBR Appeal

27An appeal to the EIRB is clearly a proceeding within the meaning of section 45.1 and been recognized as such in Tribunal jurisprudence. See Caldeira v. 2068006 Ontario, 2010 HRTO 920, and Mustafa, supra.

28The question is whether the issues raised in the Application were appropriately dealt with in the EIRB proceeding in whole or in part. The Application raises the issue of whether the termination of the applicant’s employment was the result of discrimination or harassment because of disability. In my view, the EIRB dealt with the same issue. The EIRB was required to consider whether the claimant had just cause to decline reinstatement to employment because of, amongst other things, violations of her human rights. The docket before the EIRB contained the claimant’s allegations that SLF harassed her and discriminated against her because of disability. The EIRB found that Ms. Yakymova was not subject to such violations of the Code and concluded that she did not have just cause to decline SLF’s offer of reinstatement. The EIRB found that SLF initially terminated her employment because she did not provide medical information to support her medical leave, not because of discrimination. The applicant was aware of the case to be met, i.e., HRSDC’s position that she did not have just cause to voluntarily her employment at the EIRB and had the opportunity to meet it by presenting evidence and making submissions to the board

29In light of the EIRB’s conclusions, the allegations set out in the Application that Ms. Yakymova was harassed and dismissed because of disability and that SLF failed to accommodate her cannot succeed. Accordingly, the EIBR proceeding dealt appropriately with these parts of the Application and they must be dismissed.

30The Application, however, also contains allegations that the applicant received differential treatment regarding the scheduling of vacation because of her place of origin. The complainant did not include this allegation in support of her claim for regular employment insurance benefits and did not adduce evidence of it before the EIBR. Accordingly, the EIBR made no findings of fact on this issue and I do not agree with the respondent that the EIBR decision can be taken to encompass it. In my view, the EBIR has not “dealt with” these allegations in any manner and it is therefore not subject to dismissal under section 45.1.

The Grievance Procedure

31The Union filed a grievance for the claimant following the termination of her employment. However, the Union withdrew the grievance when she did not produce medical documentation to assist with returning her to work because she declined to be reinstated. The grievance was not settled or taken to arbitration. In Paterno v. Salvation Army, Centre of Hope, supra, the Tribunal found that a grievance unilaterally withdrawn by a union is not a proceeding and in any event did not deal with the allegations set out in the application. In my view, the same reasoning applies to this case. I would also note that the grievance the Union filed on the claimant’s behalf challenged SLF’s decision to terminate her employment, not the Union’s conduct of which the applicant complains in the Application. Consequently, there is no basis to dismiss the Application as against the Union under section 45.1.

Request for Order to Amend the Application

32On February 12, 2012, the applicant filed a Request for Order during Proceedings (the “Request”) seeking to amend the Application to add allegations that the respondents committed reprisals against the complainant for filing this Application. Specifically, the applicant alleges that the respondents deliberately delayed processing the complainant’s request to access her pension following the termination of her employment and ignored her requests for assistance. The applicant noted that these reprisals were not dealt with by the EIBR.

33SLF filed a Response to a Request (“Response to Request”) for an Order on February 27, 2012. The Union did not respond. SLF submitted that the allegations set out in the Request are distinct from the allegations contained in the Application and should be addressed in a new application. SLF explained that unfamiliarity with the pension process and administrative errors caused the delay in processing the complainant’s request, not reprisal. SLF submitted that the Request was filed in light of the hearing regarding section 45.1.

34In determining requests to amend pleadings under section 34 of the Code, the Tribunal generally considers the nature of the proposed amendments, the reasons for the amendments, the timing of the request to amend, and the prejudice to the respondent. See Ewing v. Thunder Bay Police Services Board, 2011 HRTO 1066.

35I am satisfied that the applicant should be permitted to amend the Application as requested. The Request was timely and the respondents have not identified any prejudice to them if the Request is granted. The Request had no effect on the outcome of the hearing regarding the application of section 45.1 to the Application, at which SLF was largely successful, as described above.

Order

36The Tribunal orders as follows:

1. The allegations that SLF terminated the claimant’s employment contrary to the Code are dismissed;
2. The allegations that SLF discriminated against the claimant because of her place of origin in scheduling vacation shall continue;
3. The allegations against the Union shall continue; and,
4. The Request to amend the Application is granted.

37The Application shall be returned to the Registrar for processing.