Cox v. Ontario (Community Safety and Correctional Services), 2012 HRTO 1607

Leroy Cox

Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Minister of Community Safety and Correctional Services

Respondent

Adjudicator: Ken Bhattacharjee

Date: August 22, 2012

Citation: 2012 HRTO 1607

Indexed as: Cox v. Ontario (Community Safety and Correctional Services)

appearances

Leroy Cox, Applicant ) Julian N. Falconer and ) Asha James, Counsel

Her Majesty the Queen in Right ) of Ontario as represented by the ) Cathy Phan, Counsel Minister of Community Safety and ) Correctional Services, Respondent ) )

Ontario Public Service Employees Union ) Ed Holmes, Counsel

INTRODUCTION

1The purpose of this Interim Decision is to determine whether the Application should be dismissed in whole or in part pursuant to s. 45.1 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), because another proceeding has in whole or in part appropriately dealt with the substance of the Application. This issue was addressed at a preliminary hearing where the parties were afforded the opportunity to make oral submissions.

BACKGROUND

3The applicant, who identifies as African-Canadian, is employed as a correctional officer by the respondent. He began working at the Toronto Jail in July 2004. Shortly thereafter, the applicant saw racist graffiti in the Jail on several occasions. Between 2005 and 2008, several anonymous letters, which were racist and threatening in nature and directed towards racialized staff, were left in or sent to the Jail. In late December 2007, the Jail received a letter which issued a specific threat against the applicant. It was widely believed that the letter writer was an employee of the Jail. The letters escalated racial tensions in the workplace, and racialized staff, in particular, including the applicant, were fearful for their personal safety.

4Between 2005 and 2008, the Ontario Public Service Employees Union (the “Union”) filed grievances on behalf of three groups of employees of the Jail. Group A included employees who alleged that they were discriminated against because they are racialized. Group B included employees who alleged that they were wrongfully accused of racism. Group C included employees who were not comfortable with being assigned to Group A or B. The Union also filed a policy grievance which alleged that a poisoned work environment prevailed in the Jail.

5On October 20, 2005, the applicant signed a Grievance Form, which alleged the following:

I grieve that since January 2005 Management of the Toronto Jail and the Ministry have violated Article 3 of the collective agreement by not providing the Grievor with a workplace free from discrimination and hostility based on race. I further grieve that the Management of the Toronto Jail and the Ministry have violated Article 9 of the collective agreement by not taking all reasonable steps to ensure my health and safety by taking effective action to prevent racialized employees from being exposed to consistent racist graffiti or correspondence of a racist and threatening nature. The environment I am now forced to work in is racially toxic.

He also filed will-say statements in support of his grievance on May 16, 2008 and January 22, 2010.

6The grievances were referred to the GSB for mediation-arbitration. The GSB issued an order excluding the media from the process, and, because the Ministry accepted some liability for negligence resulting in the harm suffered by the individual grievors, the GSB placed limits on calling evidence during the hearing of the individual grievances. Specifically, the evidence was limited to the grievor’s will-say statement, the grievor’s oral testimony at a private hearing, and supporting documents. The respondent was not allowed to cross-examine the grievor. However, all the individual grievances, with the exception of the applicant’s, ended up being resolved through mediation. See Ontario Public Service Employees Union (Tardiel) v. Ontario (Community Safety and Correctional Services), 2010 CanLII 81917 (ON GSB).

7The GSB also issued several decisions that dealt with the policy grievance. In Ontario Public Service Employees Union v. Ontario (Community Safety and Correctional Services), 2008 CanLII 70513 (ON GSB), the GSB addressed the implementation of systemic remedies. The GSB identified 128 objectives to which the parties committed themselves. These objectives then formed the basis for a series of action plans the parties agreed upon in order to bring about systemic improvements at the Toronto Jail. The GSB remains seized with respect to the implementation of the systemic remedies. The GSB also issued a Decision, Ontario Public Service Employees Union (Tardiel et al) v. Ontario (Community Safety and Correctional Services), 2011 CanLII 36560 (ON GSB), which awarded the grievors in Groups A and B general damages because of the existence of a poisoned work environment.

8On October 27, 2009, before the hearing of his individual grievance at the GSB, the applicant filed an Application under s. 34 of the Code with this Tribunal, which alleged that the respondent discriminated against him with respect to employment because of his race. The Application was similar in substance to his grievance before the GSB. On November 27, 2009, the Tribunal issued an Interim Decision, 2009 HRTO 2046, which ordered that the Application be deferred pending the completion of the grievance proceeding.

9The applicant’s grievance was heard before the GSB on February 19 and May 27, 2010. During the hearing process, the applicant requested that his grievance be withdrawn, but his request was opposed by the Ministry and the Union, and the GSB denied his request. The GSB also denied the applicant’s request that his privately-retained counsel be given standing to address the withdrawal issue. See Ontario Public Service Employees Union (Tardiel) v. Ontario (Community Safety and Correctional Services), 2010 CanLII 81913 (ON GSB).

10On June 21, 2010, before the GSB issued a Decision with respect to his grievance, the applicant filed a further Application under s. 34 of the Code with this Tribunal against both the Ministry and the Union, which alleged that they discriminated against him with respect to employment and membership in a trade union because of his race and colour. Specifically, he alleged that on April 1, 2010, a new letter was received at the Jail which was racist and threatened him by name, and that the way that the Ministry had dealt with the previous grievances was ineffective, had perpetuated a poisoned environment in the workplace, and had allowed the letter writer to continue his racist attacks undetected. The applicant also alleged that the Union favoured Group B, which included the perpetrators of discrimination, over Group A, which included the victims of discrimination, and took active steps to hinder the investigation into the sources of the racist hate mail. On October 14, 2010, the Tribunal issued an Interim Decision, 2010 HRTO 2081, which ordered that the Application be deferred pending the completion of the grievance proceeding.

11On December 16, 2010, the GSB issued a Decision, Ontario Public Service Employees Union (Tardiel) v. Ontario (Community Safety and Correctional Services), 2010 CanLII 81917 (ON GSB), which upheld the applicant’s grievance, and awarded him general and special damages. The Decision stated that the applicant’s January 22, 2010 will-say statement provided the factual basis of his claim. The GSB remains seized with respect to the implementation of the award.

12On February 17, 2011, the Tribunal issued an Interim Decision, 2011 HRTO 347, which reactivated the applicant’s 2010 Application. The applicant subsequently filed a request to withdraw his 2009 Application, and amend his 2010 Application to include new allegations of discrimination. Specifically, the applicant alleged that the Jail had received further racist hate mail addressed to African-Canadian correctional officers, and that in September 2010 he and other employees were informed by management that there had been a security breach and their personal information, including home address and telephone number, had been accessible to all employees in the Jail for a period of time. On March 14, 2011, the Tribunal issued an Interim Decision, 2011 HRTO 514, which granted the applicant’s requests to withdraw his 2009 Application and amend his 2010 Application.

13The Application at hand is the 2010 Application. On April 1, 2011, the respondent filed an amended Response, which requested that the Tribunal exercise its discretion to dismiss the Application pursuant to s. 45.1 of the Code on the basis that the substance of the Application was appropriately dealt with by the GSB. The respondent also submitted that there are compelling policy reasons why the Application should be dismissed.

14On May 10, 2011, the Tribunal issued a Case Assessment Direction, which notified the parties that a one-day hearing would be held to address, among other things, the preliminary issue raised by the respondent. On February 14, 2012, prior to the hearing, the applicant filed an affidavit which raised more new allegations of discrimination. Specifically, he alleged that on March 8, 2011, he saw more racist graffiti in the Jail, and that on July 18, 2011, the Jail received another racist hate letter which specifically named and threatened him. He also alleged that after receiving the letter, the respondent denied his request to move from a shift in a restricted area with one other co-worker to a shift in a more open area with multiple co-workers for personal safety reasons. He further alleged that the respondent has failed to ensure that its managers and employees at the Jail participate in anti-discrimination and harassment workshops and programs.

15Pursuant to remaining seized with respect to the implementation of the systemic remedies, the GSB continues to deal with live issues relating to the adequacy of the respondent’s investigation of racist hate mail. See Ontario Public Service Employees Union (Tardiel) v. Ontario (Community Safety and Correctional Services), 2010 CanLII 81903 (ON GSB); Ontario Public Service Employees Union (Tardiel et al) v. Ontario (Community Safety and Correctional Services), 2011 CanLII 23166 (ON GSB); Ontario Public Service Employees Union (Tardiel et al) v. Ontario (Community Safety and Correctional Services), 2011 CanLII 36565 (ON GSB); and Ontario Public Service Employees Union (Tardiel et al) v. Ontario (Ministry of Community Safety and Correctional Services), 2011 CanLII 49519 (ON GSB).

16The hearing of the preliminary issue before this Tribunal took place on February 29, 2012. During the hearing, the applicant requested that his Application against the Union be withdrawn. The Union consented to the withdrawal and then read the following statement:

In the circumstances of this case, and without prejudice and precedent to the Union’s position in any other future matter, OPSEU supports the applicant’s request to proceed before the Human Rights Tribunal on the seven allegations not disposed of by Vice-Chair Albertyn in his decision dated December 16, 2010.

The Ministry did not object to the applicant’s request. Accordingly, I issued an oral ordering granting the applicant’s request and removing the Union from the title of proceedings. I also heard oral submissions from the parties on the Ministry’s request to dismiss the Application on a preliminary basis and reserved my decision. The following is my decision.

ANALYSIS

17Section 45.1 of the Code and Rule 22 of the Tribunal’s Rules of Procedure provide that the Tribunal may dismiss an Application, in whole or in part, if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the Application. This Tribunal has found that the Supreme Court’s reasoning in British Columbia (Workers’ Compensation Board) v. Figliola, 2011 SCC 52 (“Figliola”), applies to the interpretation of s. 45.1 of the Code. See Gomez v. Sobeys Milton Retail Support Centre, 2011 HRTO 2297.

18Section 45.1 of the Code is the statutory reflection of the collective principles underlying the common law doctrines of issue estoppel, collateral attack, and abuse of process, which are used as vehicles to transport and deliver to the litigation process principles of finality, the avoidance of multiplicity of proceedings, and protection for the integrity of the administration of justice, all in the name of fairness. See Figliola, supra, at paras. 24-25.

19The principles underlying s. 45.1 of the Code 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.
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.
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.
Parties should not circumvent the appropriate review mechanism by using other forums to challenge a judicial or administrative decision.
Avoiding unnecessary relitigation avoids an unnecessary expenditure of resources.

See Figliola, supra, at paras. 34-35.

20Section 45.1 of the Code requires a two-part analysis: (1) whether there was another proceeding and, if so, (2) whether it appropriately dealt with the substance of the Application. In considering whether the other proceeding appropriately dealt with the substance of an application, this Tribunal may not evaluate the procedural or substantive correctness of the other proceeding. See Figliola, supra, at para. 38.

21In the case at hand, there was no dispute between the parties that the proceeding before the GSB was a proceeding within the meaning of s. 45.1 of the Code. As such, the main issue to be decided is whether the GSB appropriately dealt with the substance of the Application.

22The respondent submitted that the GSB has appropriately dealt with the substance of the Application. Specifically, the respondent stated that the GSB has already addressed the substance of the Application, namely, the allegation that the respondent has behaved negligently by failing to provide the applicant with a workplace free of racial harassment and discrimination. The respondent stated that the GSB found the respondent liable, awarded the applicant monetary damages, and remains seized to address the adequacy of the respondent’s investigation of racist hate mail, including the new letters mentioned in the Application.

23The respondent also stated that there are compelling policy reasons for dismissing the Application, including the avoidance of duplication of adjudication in multiple forums, the potential for inconsistent results, and the need to avoid squandering the Tribunal’s resources. The respondent stated the applicant should bring his new allegations back to the GSB, which has extensive knowledge and expertise with respect to the racial harassment and discrimination issues at the Jail, and is in the best position to address the applicant’s situation.

24The applicant submitted that the GSB has not appropriately dealt with the substance of the Application. Specifically, he stated that the GSB only dealt with the allegations in his 2005 grievance and 2010 will-say statement, which cover the period from 2005-2009; that the GSB is not seized with respect to his new allegations; and no grievance has been filed with respect to his new allegations. The applicant also stated that the GSB process has failed to provide him with a work environment free of harassment and discrimination because he continues to be subjected to racist letters which threaten him by name. He stated that he should not be held captive to an internal process that has failed to root out the perpetrators of the racism and bring an end to his victimization.

25The applicant further stated that there are compelling policy reasons for allowing him to bring his new allegations to this Tribunal, including the openness of the process (the media and public will be able to attend), the ability to call and cross-examine witnesses, and the right to use privately-retained counsel, none of which was or is available at the GSB. He also stated that, although the GSB has jurisdiction to interpret and apply the Code, it does not have the specialized expertise in racial harassment and discrimination issues that this Tribunal does. For the aforementioned reasons, the applicant stated that he believes that the process before this Tribunal is more likely to bring an end to his victimization than the process before the GSB.

26I find that the GSB has not appropriately dealt with the substance of the Application. The proceeding before the GSB dealt with the allegations in applicant’s 2005 grievance and 2010 will-say statement (and his 2009 human rights Application), which cover the period from 2005-2009, not the allegations in his 2010 Application before this Tribunal, which cover the period from April 1, 2010, to the present. The applicant does not have, and has never had, a grievance before the GSB which is similar in substance to his current Application before this Tribunal. In addition, although the GSB remains actively seized with respect to the adequacy of the respondent’s investigation of racist hate mail, including the new letters mentioned in the current Application, the GSB is seized only with respect to systemic issues, not the applicant’s individual issues. Furthermore, the applicant’s Union supports his decision to bring his new allegations before this Tribunal, rather than returning to the grievance process.

27That said, if the Tribunal finds that the respondent discriminated against the applicant, there is still a live issue as to whether the Tribunal can or should make any order for public interest remedies, given that the GSB remains seized with respect to the implementation of systemic remedies. In my view, this issue should be decided after a hearing of the merits of the Application where full evidence and legal arguments will be heard.

28Accordingly, the respondent’s request to dismiss the Application on a preliminary basis pursuant to s. 45.1 of the Code is dismissed.

NEXT STEPS

29For the sake of clarity, within 21 days of the date of this Interim Decision, the applicant shall deliver to the respondent and the Union and file with the Tribunal an amended Application which includes an updated narrative, or confirms that his February 2012 affidavit is his updated narrative. Within 35 days of receiving the amended Application, the respondent shall deliver to the applicant and the Union and file with the Tribunal an amended Response. Within 14 days of receiving the amended Response, the applicant may deliver to the respondent and the Union and file with the Tribunal a Reply.

30The Union is no longer a party in this proceeding. If the Union wishes to have intervenor status, it is required to deliver to the parties and file with the Tribunal a Request to Intervene (Form 5).

31If the parties are interested in mediation, they shall contact the Tribunal’s Registrar within two weeks of the date of this Interim Decision. If the parties do not contact the Registrar, or indicate that they are not interested in mediation, the Registrar shall schedule a hearing of the merits of the Application.

ORDER

32The Tribunal makes the following orders and directions:

The respondent’s request to dismiss the Application on a preliminary basis pursuant to s. 45.1 of the Code is dismissed.
Within 21 days of the date of this Interim Decision, the applicant shall deliver to the respondent and the Union and file with the Tribunal an amended Application which includes an updated narrative, or confirms that his February 2012 affidavit is his updated narrative.
Within 35 days of receiving the amended Application, the respondent shall deliver to the applicant and the Union and file with the Tribunal an amended Response.
Within 14 days of receiving the amended Response, the applicant may deliver to the respondent and the Union and file with the Tribunal a Reply.
If the Union wishes to have intervenor status, it is required to deliver to the parties and file with the Tribunal a Request to Intervene (Form 5).
If the parties are interested in mediation, they shall contact the Tribunal’s Registrar within two weeks of the date of this Interim Decision.

33I am not seized of this matter.

Dated at Toronto, this 22^nd day of August, 2012.

“Signed by”

Ken Bhattacharjee

Vice-chair