Grantley Howell v. National Steel Car Limited, 2012 HRTO 1589

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Grantley Howell Applicant

-and-

National Steel Car Limited, Hal Bruckner and Tony Gauthier Respondents

DECISION

Adjudicator: Geneviève Debané Date: August 17, 2012 Citation: 2012 HRTO 1589 Indexed as: Howell v. National Steel Car Limited

APPEARANCES

Grantley Howell, Applicant Self-represented

National Steel Car Limited, Hal Bruckner and Tony Goutier, Respondents Jane M. Gooding, Counsel

Introduction

1This is an Application filed on June 25, 2010 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to membership in a vocational association on the grounds of race, reprisal and association with a person identified by a prohibited ground of discrimination and seeking remedies pursuant to the Canadian Charter of Rights and Freedoms (the “Charter”). The respondents’ filed a common Response in January 2011 in which they request the dismissal of the Application on the basis that another proceeding has appropriately dealt with the substance of the Application.

2On December 13, 2011, the Registrar issued a Notice to the parties advising that a half-day in person preliminary hearing would be held to hear submissions with respect to the respondents’ Request to dismiss and the applicability of the Charter to the respondent National Steel Car Limited as a private employer.

3The preliminary hearing was held on April 23, 2012 during which the applicant and the respondents made oral submissions. Both the applicant and the respondents filed materials and case-law in advance of the hearing. The applicant also filed post-hearing submissions and case-law.

Background

4The applicant is employed by National Steel Car Limited (the “employer” or the “corporate respondent”) and his terms and conditions of employment are governed by a Collective Agreement between the employer and his bargaining agent, the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, Local 7135 (the “Union”).

5The applicant is also a representative of the Union holding the positions of Recording Secretary and Human Rights Officer, and in this capacity has represented fellow union members during grievance arbitrations, and some hearings before the Ontario Labour Relations Board and the Human Rights Tribunal of Ontario.

6I am satisfied that the Union had notice of the proceeding and I was advised by the applicant at the hearing that the Union was not seeking intervener status.

7The applicant acted as a representative for Terry Karamesinis (T.K.) in an application T.K. filed at the Tribunal against the corporate respondent and the personal respondent Tony Gauthier.

8On March 3, 2009, the applicant, T.K. and representatives of the corporate respondent, including the personal respondent Hal Bruckner, attended mediation at the Tribunal during which no settlement was reached. T.K. subsequently complained to the Toronto Police that Mr. Bruckner had threatened him with bodily harm at the mediation which resulted in charges being laid against Mr. Bruckner. It should be noted that, ultimately, Mr. Bruckner was found not guilty of these charges.

9On November 3, 2009, the Tribunal issued its decision dismissing the T.K. application; 2009 HRTO 1812.

10The employer terminated the applicant’s employment effective January 6, 2010 on the basis that he had engaged in misconduct while representing T.K. in the human rights proceeding. The termination letter states in part:

You have been discharged for your violation of Plant Rule 17. Details for the discharge involve your involvement with a former employee of this company, Mr. Terry Karamenisis, to lay a criminal charge against myself, the Vice President of Human Resources, and then to illegally attempt to obtain funds from the company to have the criminal charges withdrawn. Not only do we see your conduct in this matter as illegal, but it also places the writer in an extreme conflict of interest by attempting to induce him to use company funds to address a personal matter which arose in the course of his employment.

Your conduct, although alleged to be in conjunction with your union responsibilities, was in fact totally unrelated to your union responsibilities in that Mr. Karamenisis’ employment status with the company was brought to a conclusion over three years prior to these events by way of a settlement to which Mr. Karamenisis and the union were signing parties. However, your conduct and the extreme severity of that conduct has totally undermined the employment relationship and my ability and the ability of my department to interact with you in the future, knowing the level of dishonesty you are prepared to engage in, in order to extract funding from the company.

11The Union filed a grievance on behalf of the applicant alleging dismissal without just cause. The grievance was referred to Arbitrator Michael Bendel for binding arbitration pursuant to the collective agreement and the Labour Relations Act, 1995, S.O. 1995, c. 1 Sched. A. (“LRA”). The Union was represented by counsel during the two-day arbitration hearing.

12On April 23, 2010, Arbitrator Bendel released his decision (the “Decision”) in which he allowed the grievance and reinstated the applicant: 2010 CanLII 20011. The Arbitrator summarized the issue in dispute as follows:

Mr. Grantley Howell, a welder with some 31 years’ seniority and a long-time union official, challenges the termination of his employment effective January 6, 2010, for certain conduct related to the representation of a former employee on a human rights complaint. Specifically, the letter of discharge alleges that the grievor bore some responsibility for the laying, against Mr. Hal Bruckner, the employer’s Vice President of Human Resources, of a criminal charge of threatening to cause bodily harm to the former employee, and that he then attempted to persuade the employer to make a financial settlement with the former employee, as part of which the criminal charge would be withdrawn. In addition to describing the grievor’s conduct as dishonest, the employer maintains that the grievor violated section 139 of the Criminal Code, R.S.C. 1985, c. C-46, as amended, which makes it illegal to attempt to “obstruct, pervert or defeat the course of justice in a criminal proceeding”.

13A subsequent decision issued November 25, 2010 determined the applicant’s wage loss: 2010 CanLII 70540. The union did not request, and the Arbitrator did not award, any compensation for breach of the applicant’s rights under the Code.

14In the Application before the Tribunal the applicant alleges amongst other things that his employment was terminated by the corporate respondent because he sought the enforcement of the Code and because of his participation as a representative of another person in a human rights proceeding.

Submissions of the Parties

15The respondents’ submit that the grievance and arbitration proceeding appropriately dealt with the substance of the Application and that the applicant had the opportunity to allege that his termination from employment was discriminatory and to seek remedies for his Code claims in that proceeding. The respondents’ submit that this Application is a collateral attack on the arbitrator’s findings, constitutes an abuse of process and that the Application should be dismissed pursuant to section 45.1 of the Code.

16With respect to the Charter issues raised by the applicant, it is the respondents’ position that the corporate respondent is not subject to the Charter because it is a private employer. As such, the Charter has no application and the applicant’s claim cannot be successful.

17The applicant submits that the alleged breach of the Code was never raised during the grievance and arbitration proceeding. When I asked the applicant why no human rights issues were raised during the arbitration hearing, the applicant advised me that he did not know why and that any comments on this issue would be pure speculation on his part. It was the applicant’s position that because the arbitrator had not expressly dealt with the human rights issues, the Tribunal could proceed with the Application because the substance of the application dealing with the human rights issues had not been addressed.

18With respect to the application of the Charter to the corporate respondent, the applicant submitted that if I dismissed the Application pursuant to s. 45.1 then I had no jurisdiction to proceed with his Charter claims. At the hearing, the applicant maintained that the Charter did apply to the corporate respondent stating that there was recent case-law from the Supreme Court of Canada in support that the Charter applied to collective agreements. I gave the applicant the opportunity to send me this case after the preliminary hearing. The applicant forwarded a copy of the Supreme Court of Canada’s decision in Health Services and Support-Facilities Subsector Bargaining Association v. British Columbia, 2007 SCC 27, [2007] 2 S.C.R. 391 (“B.C. Health Services”).

Application of the Charter

19I have reviewed B.C. Health Services and the submissions of the parties and find that the Charter does not apply in these circumstances. There is no dispute that the corporate respondent is a private employer and does not exercise any government or state powers. The corporate respondent entered into a collective agreement with the Union which is a private contract to which the Charter has no application. See: Bhindi v. British Columbia Projectionists, Local 348, International Alliance of Picture Machine Operators of United States & Canada, 1986 CanLII 1100 (BC CA), 29 D.L.R. (4th) 47 (B.C.C.A). There is nothing in the B.C. Health Services decision which has made any findings to suggest that private agreements, including collective agreements, are subject to the Charter.

Section 45.1

20Section 45.1 of the Code states:

The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.

21There are two parts to the analysis of s. 45. 1. First, I must determine whether there has been another “proceeding”. If that part of the test is satisfied, I must then decide whether that proceeding “appropriately dealt with the substance of the Application”.

22It is well established that the grievance and arbitration process is a “proceeding” for the purposes of section 45.1 of the Code. See for example: Delos Santos v. Maple Lodge Farms, 2009 HRTO 1690 at para. 20 and Paterno v. Salvation Army, 2011 HRTO 2298 at para. 22.

23The key issue in dispute in this Application is whether the arbitration proceeding appropriately dealt with the substance of the Application. In British Columbia (Worker’s Compensation Board) v. Figliola, (“Figliola”) 2011 SCC 52, [2011] 3 S.C.R. 422 the Supreme Court of Canada considered provisions similar to s. 45.1 in the British Columbia Human Rights Act. The Supreme Court of Canada states at paras. 34 to 38 in Figliola:

At their heart, the foregoing doctrines exist to prevent unfairness by preventing “abuse of the decision-making process” (Danyluk, at para. 20; see also Garland, at para. 72, and Toronto (City), at para. 37). Their common underlying principles can be summarized as follows:

• It is in the interests of the public and the parties that the finality of a decision can be relied on (Danyluk, at para. 18; Boucher, at para. 35).

• Respect for the finality of a judicial or administrative decision increases fairness and the integrity of the courts, administrative tribunals and the administration of justice; on the other hand, relitigation of issues that have been previously decided in an appropriate forum may undermine confidence in this fairness and integrity by creating inconsistent results and unnecessarily duplicative proceedings (Toronto (City), at paras. 38 and 51).

• The method of challenging the validity or correctness of a judicial or administrative decision should be through the appeal or judicial review mechanisms that are intended by the legislature (Boucher, at para. 35; Danyluk, at para. 74).

• Parties should not circumvent the appropriate review mechanism by using other forums to challenge a judicial or administrative decision (TeleZone,at para. 61; Boucher, at para. 35; Garland, at para. 72).

• Avoiding unnecessary relitigation avoids an unnecessary expenditure of resources (Toronto (City), at paras. 37 and 51).

These are the principles which underlie s. 27(1)(f). Singly and together, they are a rebuke to the theory that access to justice means serial access to multiple forums, or that more adjudication necessarily means more justice.

Read as a whole, s. 27(1)(f) does not codify the actual doctrines or their technical explications, it embraces their underlying principles in pursuit of finality, fairness, and the integrity of the justice system by preventing unnecessary inconsistency, multiplicity and delay. That means the Tribunal should be guided less by precise doctrinal catechisms and more by the goals of the fairness of finality in decision-making and the avoidance of the relitigation of issues already decided by a decision-maker with the authority to resolve them. Justice is enhanced by protecting the expectation that parties will not be subjected to the relitigation in a different forum of matters they thought had been conclusively resolved. Forum shopping for a different and better result can be dressed up in many attractive adjectives, but fairness is not among them.

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”. At the end of the day, it is really a question of whether it makes sense to expend public and private resources on the relitigation of what is essentially the same dispute.

What I do not see s. 27(1)(f) as representing is a statutory invitation either to “judicially review” another tribunal’s decision, or to reconsider a legitimately decided issue in order to explore whether it might yield a different outcome. The section is oriented instead towards creating territorial respect among neighbouring tribunals, including respect for their right to have their own vertical lines of review protected from lateral adjudicative poaching. When an adjudicative body decides an issue within its jurisdiction, it and the parties who participated in the process are entitled to assume that, subject to appellate or judicial review, its decision will not only be final, it will be treated as such by other adjudicative bodies. The procedural or substantive correctness of the previous proceeding is not meant to be bait for another tribunal with a concurrent mandate.

24In Gomez v. Sobeys Milton Retail Store, 2011 HRTO 2297 at paras. 22-25, the Tribunal found that the Figliola analysis is applicable to interpretation of s.45.1 of the Ontario Code. I agree with that reasoning. Having regard to these passages from Figliola, it is clear that the Tribunal must have regard to a number of factors in determining whether a proceeding has appropriately dealt with the substance of the Application.

25I have reviewed the Decision of Arbitrator Bendel and it is clear that the Arbitrator did not consider or apply any human rights related issues nor did he consider whether the applicant`s termination was contrary to the Code or constituted a reprisal. There is no dispute that the issue was simply not put to him by the parties. The applicant argues that section 45.1 cannot apply in circumstances in which the “other proceeding” has not dealt with the human rights issues.

26In Noble v. York University, 2009 HRTO 1201, the Tribunal states at paras. 30 and 31:

While a high value should be placed on principles of finality, judicial economy and the recognition that other adjudicative bodies have the responsibility and jurisdiction to interpret and apply the Code, ultimately the question will turn on whether the “substance of the application” was appropriately dealt with in “another proceeding.” I agree completely with the reasoning and result in Campbell, and reject the Commission and complainant’s argument that simply because the grievance did not refer to, or allege a violation of the Code, section 45.1 has no application.

Likewise, I reject the argument that because the Arbitrator did not determine whether discrimination occurred, then section 45.1 does not apply. Along with the other considerations set out in Campbell and subsequent Tribunal decisions, the question in determining whether to exercise a discretion under section 45.1 is not whether an applicant received the result and remedy they were seeking in the other proceeding, but whether there was a full and fair opportunity to have the human rights claim considered, before an adjudicator who had the jurisdiction to interpret and apply the Code. There is no question that the Arbitrator had that jurisdiction.

27More recently, the Tribunal in Hansen v. Workplace Safety and Insurance Board, 2012 HRTO 608 (“Hansen”), found that s. 45.1 could be applied in circumstances in which the other proceeding determined the substance of the application without making any findings that the Code had been breached stating at paras. 17 and 18:

By invoking the statutory appeals process available under the WSIA for challenging the denial of benefits by an adjudicator, the applicant has succeeded in reversing the very action that is the focus of the Application before me. He has had the opportunity to have his human rights claim considered before an adjudicative body, the WSIAT, that has the authority to consider such a claim, but which did not find it necessary to decide the human rights issue in order to allow the applicant’s appeal. In a sense, the crux of the issue before me can be described as this: whether, despite having succeeded in reversing an allegedly discriminatory denial of benefits, the applicant may ask this Tribunal to also review the same denial of benefits on a different theory than that applied by the WSIAT, in order to establish a claim for additional remedies.

The applicant agreed that section 45.1 would apply if the WSIAT had considered and applied the human rights issues in the course of reaching its decision. In the circumstances, I do not see how the same does not hold here. Where the applicant’s position has been vindicated and the benefit restored, the public interest in avoiding the duplication of proceedings does not support the re-litigation of the issues for the sole purpose of seeking additional remedies. I do not wish to suggest generally that the issue of remedies is unimportant. But I have some doubt about the policy basis of the claim of monetary compensation in this case. Given the WSIAT decision, the applicant’s claim for monetary compensation would be based on alleged injury to dignity arising out of having received an initial decision denying a benefit, which was subsequently overturned within the very framework established for correcting such an error. It would be fair to characterize this as an extraordinary basis for a remedial claim. The other remedies the applicant seeks, involving policy change and training, are important human rights remedies but, in the circumstances, do not justify embarking on otherwise unnecessary litigation.

28I do not accept the applicant’s argument that section 45.1 does not apply because Arbitrator Bendel did not deal with human rights issues in the Decision. I agree with the reasoning in Noble and Hansen that section 45.1 should not be so narrowly construed. I find in these circumstances that the substance of the Application is with respect to the applicant’s termination from employment. This encompasses issues including the legitimacy of the termination, the employer`s motives for the termination and whether the termination was contrary to the Code. The applicant had the full opportunity to raise these issues at the arbitration, and to seek damages for them, but failed to do so. As noted by the Tribunal in Cunningham v. CUPE 4400, 2011 HRTO 658 at para. 57:

…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.

29In this case, all of the facts relied upon by the applicant in the Application were canvassed during the arbitration proceeding. In essence, the applicant is seeking to relitigate the issue of his termination from employment to find that the respondents’ engaged in a reprisal when they terminated his employment. Section 48(12)(j) of the LRA confers the jurisdiction to interpret and apply human rights law, and to award human rights remedies on labour arbitrators in Ontario. The issue of any alleged human rights violations with respect to the applicant’s termination from employment should have been put to Arbitrator Bendel at the arbitration hearing so that he could make a final determination of this issue and impose any remedial order. The applicant’s attempt to raise these facts again in this case, when all of them could have been dealt with in the arbitration, raises the issues of duplicative proceedings that s. 45.1 is designed to avoid.

30As such, I find that the applicant had the opportunity to make any allegations that his termination was contrary to the Code during the arbitration proceeding dealing with the same facts and the legality of his termination, where the arbitrator has concurrent jurisdiction to apply the Code. The applicant did not provide any reasonable explanation for his failure to raise these issues before the arbitrator. To permit the Application to proceed would deny the parties finality and would result in relitigation.

31I find that the substance of the Application has been appropriately dealt with by another proceeding and the Application is accordingly dismissed.

Dated at Toronto, this 17th day of August, 2012.

“Signed by”

Geneviève Debané Vice-chair