HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Lisa Zeng Applicant
-and-
University Health Network and Maria Armenta Respondents
-and-
Ontario Public Service Employees Union Intervenor
DECISION
Adjudicator: Jay Sengupta Date: September 6, 2012 Citation: 2012 HRTO 1689 Indexed as: Zeng v. University Health Network
APPEARANCES
Lisa Zeng, Applicant Self-represented
University Health Network and Maria Armenta, Respondents No one appearing
Ontario Public Service Employees Union, Intervenor Danny Kastner, Counsel
Introduction
1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination in respect of employment on the basis of disability and reprisal.
2In a previous Interim Decision, 2012 HRTO 738, the Tribunal directed that a half-day preliminary hearing be held to address the respondents’ request that the Application be dismissed on the basis that the substance of the matter before the Tribunal has been dealt with in another proceeding.
3On the date of the scheduled conference call at the scheduled time, the applicant and counsel for the intervenor union were present; the respondents were not. The Tribunal provided the respondents an additional 15 minutes to join the conference call and then convened the preliminary hearing.
4An Amended Notice of Preliminary hearing was sent to the parties on May 16, 2012, and the notice sent to the respondents has not been returned as undeliverable. I am satisfied that the respondents received timely and proper notice of the hearing and, as the Tribunal has received no request for adjournment, the conference call hearing proceeded in the absence of the respondents.
5In arriving at my decision, I have considered the written materials filed by the respondents in support of their request for dismissal under s. 45.1.
6Two days following the teleconference hearing, the Tribunal received an email from the representative of the respondents, in which she seeks what she refers to as “an extension for submissions” and indicating that she did not participate in the teleconference because of a number of serious illnesses in her family. It is unclear what deadline she seeks to extend as the teleconference hearing had already concluded and the Tribunal had not received any requests for adjournment in advance of the hearing. Consequently, the respondents’ request is denied.
7During the course of hearing submissions from the applicant, she sought to refer to additional documents not submitted in advance of the teleconference hearing in accordance with my previous Interim Decision. The applicant was permitted to serve and file the documents referred to at the hearing by 5 p.m. on Friday, August 17, 2012.
8Following the hearing, the applicant sought an extension of that deadline but subsequently sent in her material prior to the deadline.
9For the reasons that follow, this Application is dismissed.
DECISION
10Section 45.1 of the Code 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.
11The applicant was employed as a medical laboratory technician by the respondent employer (University Health Network) beginning in October, 2009. Her employment was terminated on January 20, 2010.
12A grievance, dated January 27, 2010, was filed by the intervenor union. Among other issues, the grievance concerned harassment and discrimination under the Code, as well as the termination of the applicant’s employment. The grievance process concluded in the release of an Arbitration Decision, dated September 5, 2010, issued by Arbitrator F.M. Reilly, in which he ruled as follows:
I find that the Grievor [Ms. Zeng] was an employee with an injury that was subject to accommodation under the Code. Sufficient evidence was lead to show that at least one of the reasons for terminating the Grievor’s employment when it did was her need to be accommodated for a period of six months. I find that this in itself is a violation of the Code.
As a result, I order the Employer to pay to Ms. Zeng forthwith the sum of Eight Thousand Five Hundred ($8,500.00) as general damages with no deduction for income tax or other statutory deductions being made as I find her immediate supervisors were motivated at least in part by a desire to end the employment relationship rather than accommodate the Grievor to modified work.
13Although the applicant insists that she is not attempting to relitigate or overturn findings made by Arbitrator Reilly, it appears that is, in fact, what she seeks to do. Although she does not argue with his finding that the Code was breached, she seeks to relitigate issues she believes were not addressed by the Arbitrator and obtain remedies that were before Arbitrator Reilly and not awarded.
14She makes two arguments in support of her position that the Application ought not to be dismissed pursuant to s. 45.1.
15First, she argues that the grievance process was not a proceeding because in correspondence sent to her, the intervenor union refers to the appearance before Arbitrator Reilly as a “mediation”. Although a Decision was issued by the arbitrator, she says no hearing was held and, therefore, there was no other “proceeding”.
16I am not persuaded by the applicant’s argument that the grievance proceeding that culminated in a decision made by an arbitrator under section 50 of the Labour Relations Act, R.S.O. 1995, c. 1, Sch. A, as amended, is not a “proceeding” within the meaning of s. 45.1 of the Code. Regardless of what it may have been called in correspondence between her and the union, it is clear that evidence was heard, arguments considered and a decision rendered by by Arbritrator Reilly.
17The Tribunal has accepted on a number of occasions that an arbitration hearing that is part of a grievance process is a proceeding within the meaning of the Code.
18The applicant’s second argument is that even if I accept that the decision of Arbitrator Reilly that found a breach of the Code, and that made an award of $8,500.00 in general damages in her favour, was a “proceeding”, her Application to the Tribunal should not be dismissed because Arbitrator Reilly failed to deal with some of the Code issues at all and did not appropriately deal with others.
19Specifically she argues that the decision of Arbitrator Reilly did not determine whether the respondents denied her request for accommodation when she returned to work on December 23, 2009, whether she was harassed on the basis of disability, whether the reduction of her hours constituted reprisal for requesting accommodation and, finally, that Arbitrator Reilly failed to make an order reinstating the applicant or awarding special damages for wage loss despite finding that the termination was contrary to the Code.
20The intervenor union was represented by counsel and made brief submissions in support of dismissal of the Application.
21The union argued that the principles outlined in the decision of the Supreme Court of Canada in British Columbia (Workers’ Compensation Board) v. Figliola, 2011 SCC 52 (“Figliola”), are determinative of the issues before me.
22The union argued that the Tribunal cannot proceed to hear this Application as it is clear from the arguments made by the applicant that she seeks to challenge the remedy awarded by Arbitrator Reilly and the Tribunal is not the appropriate forum for that. The union also referred me to the decision of the Tribunal in Gomez v. Sobeys Milton Retail Support Centre, 2011 HRTO 2297.
23The Tribunal held as follows at paragraph 21 of the Gomez decision:
In my view, the analysis adopted in Figliola applies to the interpretation of s.45.1 of the Code, and mandates that an application be dismissed if another proceeding has determined the issues raised in the application. This Tribunal cannot, under s.45.1 decide to proceed with an application based on a review of the process or substance of the other proceeding. Applicants must raise such issues in a judicial review or appeal of the other proceeding.
24The applicant suggests that Gomez can be distinguished from her case because, in that case, no violation of the Code was found to have occurred. Her argument is that because Arbitrator Reilly found that the Code had been breached in her case, it is open to the Tribunal to continue to hear the Application to ensure all Code arguments advanced by her are considered and decided.
25I find the applicant’s argument must fail. There is no logic to her reasoning that the Tribunal can delve into issues surrounding remedy in cases where a breach has been established in another proceeding. The principles outlined in Figliola apply in situations such as the present Application, whether or not a breach of the Code has been found by the prior decision maker. It is clear the arbitrator considered all remedial requests made by the parties before him and it is not the Tribunal’s role to revisit those findings.
26I find, therefore, that the substance of the matters before me has been appropriately dealt with in another proceeding. Accordingly, the Application is dismissed.
Dated at Toronto, this 6th day of September, 2012.
“Signed by”
Jay Sengupta Vice-chair```