HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Zelalem Gammada
Applicant
-and-
Mount Pleasant Group of Cemeteries and National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada) Local 1643
Respondents
DECISION
Adjudicator: David Muir
Indexed as: Gammada v. Mount Pleasant Group of Cemeteries
APPEARANCES
Zelalem Gammada, applicant ) Timothy Bingham, Counsel
Mount Pleasant Group of Cemeteries, ) Seann McAleese, Counsel respondent )
National Automobile, Aerospace, ) Transportation and General Workers ) Lewis Gotheil, Counsel Union of Canada ) (CAW-Canada), Local 1643, ) Respondent )
1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”), on November 15, 2010, which alleged that his right to be free of discrimination in employment was infringed by the respondents, his former employer and his collective bargaining agent contrary to Section 5 of the Code.
2The respondent employer requested early dismissal of the Application against it pursuant to s. 45.1 of the Code, on the basis that an arbitration decision appropriately dealt with the substance of the Application.
3The respondent union in its Response requested that the Tribunal dismiss the Application against it because the application fails to raise a prima facie case of discrimination.
4The applicant filed a Reply and a Notice of Constitutional Question which opposed the respondents’ requests and alleged that s. 45.1 of the Code violates s. 7 of the Canadian Charter of Rights and Freedoms (the “Charter”). The applicant served the Notice on the Attorney General of Ontario and the Attorney General of Canada.
5In the circumstances, the Tribunal directed the Registrar to schedule a half-day teleconference to hear oral submissions from the parties with respect to three issues:
Should the Tribunal dismiss all or part of the Application against the respondent employer on the basis that another proceeding has appropriately dealt with the substance of all or part of the Application?
Does s. 45.1 of the Code violate s. 7 of the Charter? and
Should the Tribunal dismiss all or part of the Application against the respondent union on the basis that there is no reasonable prospect that the Application or part of the Application will succeed?
6Pursuant to s. 109 of the Courts of Justice Act, R.S.O. 1990, c. C.43, the Attorney General of Ontario and the Attorney General of Canada were entitled to introduce evidence and make submissions in respect of the Constitutional Question, but did not choose to participate.
7A hearing was held on April 12, 2012, by teleconference. All parties participated.
8The Application is dismissed. I find that the substance of this Application as it relates to the respondent employer was appropriately dealt with in the grievance arbitration and that section 45.1 is not unconstitutional. I also find that there are no credible, timely allegations of discrimination by the respondent trade union and therefore that aspect of the Application should be dismissed as well.
IS SECTION 45.1 OF THE CODE CONTRARY TO THE CHARTER?
9The Applicant takes the position that s. 45.1 of the Code and Rule 22.1 of the Tribunal Rules of Procedure violate s. 7 of the Charter as the provisions deprive the Applicant of his liberty and security of the person. The applicant’s main submission is that if the Tribunal dismisses the Application as appropriately dealt with by the grievance arbitration, it would be facilitating the alienation of the applicant’s human rights which are inalienable in the applicant’s view. The applicant submits that the grievance arbitration process requires that the grievor/applicant alienate his or her human rights to the union. The applicant submits that this is so because in the arbitration process it is the union which controls the process; it has standing at the arbitration and the grievor does not; and it is the union not the grievor/application which controls if, when and how the grievor/applicant’s human rights are resolved.
10In the applicant’s submission, these circumstances create the potential for abuse and the miscarriage of justice as has been recognized in the academic literature and according to the applicant by the Court of Appeal for Ontario in Ford Motor Company of Canada v. Naraine, 2001 CanLII 2134 (ON C.A.) and the Supreme Court in Quebec (Commission des droite de la personne et des droits de /a Jeunesse) v. Quebec (Attorney General), 2004 SCC 39, [2004] 2 S.C.R.185.
11The applicant submits that by alienating a person’s human rights the impugned section and rule violate the s. 7 Charter guarantee of liberty and security of the person. In the applicant’s submission, this breach of s. 7 of the Charter is accomplished in a manner that is “absurd, arbitrary and vague”.
12A similar argument challenging the Tribunal’s power to defer (as opposed to dismissing) Applications has been made previously, without success, by counsel for the applicant. Counsel for the applicant renews this argument in this Application In Melville v. Toronto (City), 2012 HRTO 22 the applicant in that case, challenged the exercise of discretion granted to the Tribunal to defer an Application where it was considered appropriate to do so. The applicant made two arguments in that case: first, that the provision was unjust; and second, that it violated section 7 of the Charter.
13In Melville the Tribunal rejected these arguments as follows at para.’s 8 – 11 & 14 - 15:
Labour arbitrators have full jurisdiction to apply the Code and to award Code remedies: Labour Relations Act, S.O. 1995, c. 1, sched. A, s. 48(12)(j), as amended; Parry Sound Social Services Administration Board v. O.P.S.E.U., Local 342, 2003 SCC 42. The applicant argues that it is unjust to defer to arbitration because the parties to the arbitration are the union and the employer, not the individual grievor. Since the union and employer make the ultimate decisions about the conduct of the arbitration, this leaves grievors vulnerable to delays caused by a union. A union may make decisions that the grievor does not agree with and cannot control. The applicant also argues that until the matter is referred to arbitration, there is not a formal “proceeding” with a third party neutral, and it is particularly inappropriate to defer to such a process in which there is no procedural fairness owed. Given the fundamental nature of the rights in the Code, she argues, this loss of control is wrong and, indeed, unconstitutional. She argues that if the Tribunal does defer, it should place conditions on the deferral, requiring the union and employer to move through the stages of the grievance and arbitration process under timelines set by the Tribunal.
I do not agree that the Tribunal’s policy of deferring to ongoing grievance processes is unjust. The Tribunal’s approach to deferral does not affect the substance of any party’s rights. It is a procedural step, holding the matter in abeyance while another, overlapping process, takes place. The applicant may subsequently proceed at the Tribunal, subject to the application of s. 45.1 of the Code, pursuant to which an application may be dismissed, in whole or in part, where another proceeding has appropriately dealt with the substance of the application.
An individual working under a collective agreement has a choice – he or she can choose not to file or proceed with a grievance and to pursue the application at the Tribunal instead. If the applicant chooses the grievance process and what comes with it, including representation by the union and the enforcement of particular rights under the collective agreement, he or she cannot also proceed with a Tribunal application at the same time. Deferral avoids two simultaneous proceedings that may result in conflicting determinations, ensures that the respondent need not be actively defending the same matter in two legal proceedings at the same time, and focuses the Tribunal’s limited resources on cases where it is the only process being pursued. In my view, it is consistent with the Tribunal’s mandate to interpret its rules in a fair, just and expeditious manner to defer a case when a grievance is ongoing, whether or not that grievance has yet been referred to arbitration. The grievance process is a stage in dispute resolution before the matter is referred to an independent third party, but that does not mean that there is no proceeding ongoing. Fairness supports avoiding the duplication of proceedings.
The Tribunal’s established approach is consistent with the approach of the courts to circumstances in which human rights tribunals have overlapping jurisdiction with other bodies. The courts have strongly discouraged duplication and relitigation of conclusions reached in other bodies. See, for example, British Columbia (Workers’Compensation Board) v. Figliola¸ 2011 SCC 52, and College of Nurses v. Trozzi, 2011 ONSC 4614. The Tribunal has applied that approach to labour arbitration: Gomez v.Sobeys Milton Retail Support Centre, 2011 HRTO 2297.
The applicant relies on Naraine v. Ford Motor Company of Canada (2001), 2001 CanLII 21234 (ON CA), 209 D.L.R (4th) 465. Naraine does not suggest that an applicant can pursue two proceedings at the same time. Moreover, it is not clear that Naraine would be decided the same way today in light of s. 45.1 of the Code and its interpretation in Figliola.
The applicant argues that labour arbitration should be treated differently from other types of proceedings because the applicant is not formally a party and the union has the final decision about the manner in which the matter moves forward. However, the Tribunal may defer to various processes to which the applicant is not a formal party, including criminal proceedings against a respondent (see, for example, Miller v. Bernard, 2010 HRTO 1488) and professional discipline (see, for example Shakir v.Kidron Valley Rehab, 2010 HRTO 1310). Moreover, this argument fails to recognize that in general, the law gives exclusive jurisdiction to labour arbitrators where a matter arises expressly or inferentially from the collective agreement, including rights under the Canadian Charter of Rights and Freedoms: Weber v. Ontario Hydro, 1995 CanLII 108 (SCC), [1995] 2 S.C.R. 929. The Code departs from those principles by allowing a unionized applicant to file a Tribunal application. Against this background, I fail to see how it is unjust that an applicant is permitted to pursue only one avenue at a time.
Finally, I turn to the applicant’s constitutional argument. The applicant argues that s. 45 of the Code violates s. 7 of the Charter “by facilitating the transfer of inalienable human rights from individuals to unions”. Section 7 of the Charter reads:
Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
The analysis under s. 7 begins with a consideration of whether deferral of an HRTO application deprives the applicant of life, liberty or security of the person. The applicant argues that the liberty interest is engaged because this is a state compulsion that affects important and fundamental life choices: Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307. The applicant argues that the choice of how to pursue Code rights is a fundamental life choice and that deferral compels a particular choice. I do not agree. The Code establishes rights to freedom from discrimination and, together with the Labour Relations Act, mechanisms for their enforcement. Deferral simply provides that two parallel matters cannot be pursued at the same time. It is not a state restriction on fundamental personal choices like those referred to in Blencoe such as where to establish one’s home, the parental interest in caring for one’s children, or choices related to medical care. Section 7 is not engaged by the Tribunal’s deferral power.
14I agree with this analysis and the Associate Chair’s conclusions and find that it is equally applicable to this case.
15Although there are clear differences between sections 45 and 45.1 in that section 45 merely defers the hearing of an Application where the application of section 45.1 can result in the dismissal of all or part of it, the applicant did not argue that this case could be distinguished from Melville, supra. Instead, the applicant argued that the Tribunal was in error in Melville and had been willfully blind to the consequences of the preamble to the Code, which states that human rights are inalienable. The respondent employer and union stated simply that there was no principled distinction to be made in the analysis of these two sections
16I find that there is no principled distinction between the two provisions despite the different consequences associated with their application to a case before the Tribunal. I find that, as did the Tribunal in Melville that no section 7 interest is engaged by section 45.1. The applicant claims that the consequences of his choice to go to arbitration in pursuit of his Code rights affects a “fundamental life choice” and that section 45.1 amounts to state compulsion of a particular choice. This is the same argument made in Melville, and for the same reasons articulated by the Associate Chair in that case, I do not agree.
17Section 45 and 45.1 together with other provisions of the Code recognize that human rights issues can arise in various proceedings. Section 45 seeks to ensure that two proceedings raising human rights issues do not proceed at the same time requiring the parties to engage in concurrent duplicative litigation. Section 45.1 seeks to ensure that where an application before the Tribunal raises a claim that has been appropriately dealt with in another proceeding it is not re-litigated here. In my view this does not amount to a state restriction of fundamental personal life choices akin to those referred to in Blencoe, above. I find that it is not a restriction of choice at all.
18I also observe that the applicant’s argument utterly ignores the fact that he was not deprived of a choice about where to litigate his human rights claims. He chose arbitration but could instead have filed an application with the Tribunal. Section 45.1 did not compel his choice – it says nothing about how he should make that choice – but what the section does deal with are the consequences of that choice where the same or substantially the same issues have been appropriately dealt with in the proceeding he chose. The Supreme Court of Canada has recently endorsed this purposive understanding of the effect of a substantially similar provision in another jurisdiction in British Columbia (Workers' Compensation Board) v. Figliola, 2011 SCC 52, [2011] 3 SCR 422.
19For all of these reasons I reject the applicant’s argument that section 45.1 is contrary to the Charter.
THE EMPLOYER APPLICATION
20The applicant states that s. 45.1 of the Code should not be applied in this case as the same factual matrix was not before the arbitrator. The applicant submits that critical facts were not placed before the arbitrator, in particular the misconduct of a union official and fellow employee of the applicant. The applicant alleges that there was clear evidence of racial discrimination by a union official which was acknowledged in the report of an investigation into allegations made by the applicant commissioned by the employer. The applicant alleges that the union and the employer suppressed the report because it implicated them both in racial discrimination. The applicant states that when the union’s own conduct is in issue, the manner in which the union conducted itself in the arbitration must be carefully scrutinized.
21I find that the Application, as against the respondent employer must be dismissed as the substance of it was appropriately dealt with in the arbitration proceeding.
22The applicant states that critical facts were not placed before the arbitrator and that the union, if not the employer as well, suppressed the employer’s investigation report because it implicated a union official. It is not clear that the employer’s investigation report was not before the arbitrator, but in any case as pointed out by both respondents, the content of the report was hearsay and while perhaps admissible would be given little or no weight on critical issues in dispute. Instead of relying on the report the arbitrator had the benefit of witnesses to the events in issue.
23The arbitration dealt with the applicant’s grievance that he had been unjustly dismissed from his employment, the same issue raised in this Application. During the course of the proceeding it appears plain on the face of the arbitrator’s decision that substantially all of the issues raised in this Application were canvassed in the arbitration including, to some degree at least, the conduct of the union official about whom the applicant complains. In particular the applicant’s claim that he had been the victim of racial discrimination at the hands of various individuals in the workplace was squarely before the arbitrator who heard the evidence and made findings of fact. A key issue in the arbitration, as in this Application, was whether the applicant was a victim or perpetrator of racial discrimination. The applicant does not agree with the result of the arbitration, but that does not justify the re-litigation of issues already dealt with in a different venue.
24The applicant also submits that the process was tainted by the alleged racial discrimination of a union official. The applicant alleges the fact that the union was not represented by a lawyer at the arbitration is a factor that should be considered in determining whether to allow this case to proceed. The respondent union says that the union official in question played no role in the decision making around the grievance and had his credibility challenged at the arbitration hearing by the union.
25Having reviewed the evidence, I am satisfied that all of the issues were raised in the course of the proceeding, considered by the arbitrator and his determinations of them are detailed in a lengthy and reasoned decision. In the end, the arbitrator largely did not accept the evidence of the applicant. It is not my role to consider whether or not the arbitrator made the correct determinations, rather the test is as set out in Figliola, supra, at para. 37:
Relying on these underlying principles leads to the Tribunal asking itself whether there was concurrent jurisdiction to decide human rights issues; 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 procedurally mirrored the one the Tribunal prefers or uses itself. All of these questions go to determining whether the substance of a complaint has been “appropriately dealt with”.
26There can be no doubt that this test was met in this case and that the substance of the Application was ”appropriately dealt with” through grievance arbitration. The applicant’s argues that the fact that he has no standing to launch an application for judicial review must affect the Figliola analysis. I do not agree. From the passage above, it is clear the particular processes of the other proceeding are not central to the analysis. At the end of the day, the applicant had a choice and chose to sign a grievance form rather than make an application directly to the Tribunal. He chose a process with significant advantages for him, and some limitations perhaps, but it was the choice he made. In my view the consequences of that choice do not limit the application of the principles enshrined in section 45.1 as articulated by the Court in Figliola, supra.
27For all of these reasons I find that the Application as against the respondent employer should be dismissed.
THE UNION APPLICATION.
28The respondent union submits that the Application as against it ought to be dismissed because there are no facts or allegations in the Application that would support a prima facie case of discrimination. Despite the union’s initial framing of the issue in terms of no prima facie case, the parties submissions and my reasons are based on a no reasonable prospect of success analysis. The union states that the allegations in the application which implicate the union are as follows:
a. In failing to judicially review an arbitration decision that is obviously flawed in its interpretation and application of the Code;
b. In failing to judicially review an arbitration decision that includes within it a breach of the Code; and
c. In failing to judicially review a decision that contains oblivious labour law errors.
29There are also a small number of allegations set out in the Application which date back to the 1990’s and are clearly out of time.
30I am satisfied that there is no reasonable prospect that the applicant will be able to establish a link between the allegations above, and the protected ground of race, and as such I am dismissing the Application as against the respondent union.
31I agree with the respondent union that these allegations constitute the “bald assertions” and “mere speculations” that the Tribunal has often stated are insufficient to prove a Code violation. See, Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389) There are no facts pled by the applicant that make a link between the decision of the union to not seek judicial review, if it can be said to have been a decision, and the ground of discrimination claimed. I observe at this stage that the applicant does not even assert that he asked the union to seek judicial review. Neither is there any suggestion that there are facts which might support an inference that discriminatory factors were in play that may be reasonably available to him or are in the possession of the union and could be obtained by the appropriate disclosure or order of the Tribunal. As the respondent union states, the applicant makes a leap from what amounts to a complaint of inadequate representation to an accusation of racial bias without addressing the evidentiary gap between those two things.
32The applicant does suggest that the allegations that a union official in the workplace may have committed at unspecified times several discriminatory acts in the applicant’s presence can be relied on in support of the assertion that the decision not to seek judicial review was tainted by racial bias. I agree with the union that assuming that these allegations are correct they still make no link between the failure to commence an application for judicial review and these alleged actions by the union official. There is no evidence, nor does the applicant assert that there is any evidence, that the union official in question played any role in the applicant’s arbitration proceeding or any decision making in respect of an application for judicial review. I note in this regard that the union official was a witness in the arbitration proceeding and his credibility was challenged by the union. The applicant’s claim is essentially that because a local steward may have engaged in discriminatory acts in the past it can be inferred that the union’s decision making about the applicant’s grievance was tainted by racism. This is pure speculation.
33With respect to the applicant’s allegations that the decision of the arbitrator is so obviously flawed that it can be inferred that the union’s failure to seek review similarly provides evidence of discrimination, there is little substance to this claim. I do not know whether the arbitrator’s decision is “correct” or not. It does not matter, but there is no basis to the applicant’s claim that it is obviously flawed. One of the suggestions made by the applicant is that the arbitrator made an obvious error when he concluded that the applicant had said to a co-worker of Polish origin and with a history of drug abuse that “all Poles are Nazis” and “you are a druggie” and further concluded that these comments were discriminatory. The applicant stated that it is obviously wrong because Nazism is a political ideology and such a comment is not prohibited by the Code. The applicant makes the assumption that this was the basis for the determination of this point, when, as pointed out it may well have been a determination that the arbitrator had found that it was the applicant/grievor’s stereotyping of all Poles as Nazis.
34For all of these reasons I find that the Application as it relates to the union respondent must be dismissed as well.
Dated at Toronto, this 31st day of May, 2012.
“Signed by”
David Muir
Vice-chair