HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Donald Still
Applicant
-and-
El-Met Parts Inc.
Respondent
-and-
National Automobile, Aerospace Transpiration And General Workers Union of Canada (CAW – Canada)
Intervenor
INTERIM DECISION
Adjudicator: Alan G. Smith
Indexed as: Still v. El-Met Parts Inc.
APPEARANCES
Donald Still, Applicant
Andrew C. Bome, Counsel
El-Met Parts Inc., Respondent
Melany V. Franklin, Counsel
National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW – Canada) Intervenor
Thomas Rooke, Representative
BACKGROUND
1The applicant filed this Application on February 15, 2011, under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination and harassment in his workplace on the ground of sexual orientation. He also alleged Code-related reprisal by the respondent employer.
2In its Response filed June 24, 2011, the respondent requested that the Application be dismissed on the basis that:
since the last incident of harassment/discrimination alleged by the applicant occurred in January of 2009, the Application is untimely and hence not within the jurisdiction (power to decide) of the Tribunal; and
pursuant to s. 45.1 of the Code, in that both a workplace grievance filed through CAW and a claim made to the Ontario Workplace Safety and Insurance Board (“WSIB”) have appropriately dealt with the subject matter of the Application.
3On August 5, 2011, the Tribunal issued a Case Assessment Direction (“CAD”) directing the applicant to provide written submissions with regard to the issue as to whether the Application should be dismissed as untimely.
4On August 22, 2011, the applicant provided written submissions in response to the CAD.
5On December 28, 2011, the Tribunal released an Interim Decision, 2011 HRTO 2310, ordering that a summary hearing by teleconference be scheduled to determine the preliminary issues. The Interim Decision also granted intervenor status to the National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW – Canada) (the “union”), the applicant’s bargaining agent.
6One of the specific issues that the Interim Decision noted would be addressed at the teleconference hearing was delineated in paragraph 18 of the Interim Decision:
It appears that the applicant alleges he was subjected to discrimination on the basis of sexual orientation when a time card was defaced with the word “rat”; however, it not clear from the Application how this allegation engages the Code-protected ground of “sexual orientation”.
7Pursuant to s. 43(2) of the Code a preliminary hearing by teleconference was held before me on May 2, 2012. The applicant participated in the hearing through counsel. The respondent also participated through counsel and made oral submissions. The intervenor union’s representative was connected to the teleconference. The Application and the respondents’ written submissions were also considered by me in this Decision.
CHRONOLOGY OF EVENTS
8The applicant self-identifies as homosexual. He began his employment with the employer respondent in 1997.
9The applicant alleges a series of anti-homosexual incidents in the workplace that extend back to the beginning of his employment with the respondent. For instance, in 2006 the applicant alleges that the phrase “100% gay” was written on his hard hat and that graffiti was written on the wall near his office with the words, “Watch out for gay limbo dancers”.
10In October 2008 the applicant submitted an application to the Workplace Safety and Insurance Board (“WSIB”), alleging that he suffered from depression as a result of workplace stress and harassment. A WSIB claims adjudicator denied the application in November 2008.
11Also in October 2008, the applicant’s bargaining agent filed a policy grievance alleging a violation of the respondent’s workplace violence and discrimination policy. The grievance was resolved in March 2009, with the respondent agreeing to review its harassment policy with the workforce.
12In his response to the CAD, the applicant argued that the Application is timely given that the last of a series of harassing incidents occurred in May of 2010 when the word “rat” was written on his workplace time card. (It should be noted that the time card incident was alleged in the Application, but the date of the event was not specified).
13In response to the Interim Decision of December 2011, the applicant also argued that pornographic images were used to harass him:
Starting in 2010 someone would begin leaving pictures from Hardcore pornographic magazines in his personnel file. The pictures were of heterosexual pornography. This continued until about July of 2011.
ANALYSIS: SECTION 34(1)
14Section 5 of Part 1 of the Code states:
5(1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status or disability.
15Section 7 of Part I of the Code states:
7(2) Every person who is an employee has a right to freedom from harassment in the workplace because of sex by his or her employer or agent of the employer or by another employee.
16Section 34 of the Code provides:
(1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,
(a) within one year after the incident to which the application relates; or
(b) if there was a series of incidents, within one year after the last incident in the series.
(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.
17The application was filed on February 15, 2011. Although many of the incidents set out in the Application are alleged to have occurred more than one year before the filing date, the threshold question is whether the Applicant is alleging one or more Code-related incidents of discrimination or harassment occurred after February 14, 2010.
18In the course of the hearing the applicant reiterated his allegation that the defacing of his time card with the word “rat” in May of 2010 was connected to his sexual orientation. In the course of the hearing the applicant emphasised that the incident must be seen in the overall context of an anti-homosexual workplace environment. I agree that, in context, the incident could be a Code-related incident of harassment. The Application was filed some nine months after the alleged incident and is therefore timely pursuant to s. 34(1).
19The applicant also reiterated his allegation that pornography was placed in his personnel file folder as a form of harassment due to his sexual orientation. He alleges that the last time he discovered the images in his file was July of 2010. Again, I find that this alleged incident could be a Code-related incident of discrimination or harassment and hence the Application is timely.
Conclusion
20I find that based on the materials before me and the oral submissions made at the hearing, it is not plain and obvious that the Application is untimely. I am therefore not prepared to grant the respondent’s request for early dismissal of the Application on the basis of Section 34(1). However, this is not a final determination on the issue of the Tribunal’s jurisdiction.
21I make no findings with regard to whether the applicant should be allowed to, in essence, to amend the Application by adding the allegation of finding pornography in his file folder to the list of incidents he alleges violated the Code.
22Finally, I make no determination as to whether any or all of the incidents alleged by the applicant to have occurred before February 2010 constitute a “series of incidents” pursuant to s. 34(1)(b) and hence are within the jurisdiction of the Tribunal to consider.
ANALYSIS: SECTION 45.1
23Section 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.
24Section 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.
25The 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.
26Section 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.
27In the case at hand, there was no dispute between the parties that the WSIB application and decision of late 2001 and the policy grievance filed in 2008 and resolved in 2009 were “proceedings” within the meaning of s. 45.1 of the Code. As such, the issue to be decided is whether the WSIB decision and policy grievance appropriately dealt with the substance of the Application.
28The respondent submitted that the WSIB decision and the resolution of the policy grievance have appropriately dealt with the substance of the Application. Specifically, the respondent states in its submissions that:
…there is no question that the subject matter of the grievance and WSIB claim are the same as the incidents that are at issue in his Application, namely that Mr. Still was harassed on the basis of his sexual orientation.
29With regard to the policy grievance, the applicant argued that it did not appropriately deal with the substance of the Application. The grievance filed by the Applicant’s bargaining agent, in the name of one of its representatives, reads:
I believe the company has violated the “Workplace Harassment and Discrimination Policy” as well as Article 2 and any other Article in the Collective Agreement. I demand that his sort of practice cease and full re-dress be applied.
30The applicant notes that the grievance was resolved based solely on the agreement of management, to “re-review the harassment policy with the entire workforce in 2009”. He points to the fact that no mention was made of him personally in the grievance or resolution agreement nor did he sign either document. Nor were any of the specifics noted in the Application addressed.
The WSIB Decision
31The WSIB decision of November 17, 2008, states with regard to the applicant:
…When we spoke on November 10, 2008, we discussed the seriousness of this situation and a strong medical diagnosis. You confirmed that the cause of your stress was harassment on a gradual basis. As we discussed on the telephone, there was no horrific accident causing a mental disorder, no assault, no police report. Without proof of accident, according to the above guidelines, I am unable to accept your claim for benefits…
32Clearly all the WSIB claims adjudicator decided was that the applicant had not suffered a “traumatic incident” in the workplace so as to entitle him to benefits pursuant to WSIB policy. The validity of the applicant’s allegations of Code related harassment, discrimination and reprisal were not addressed. I find therefore that s. 45.1 of the Code is not engaged.
The Policy Grievance
33By the very nature of a policy grievance, the process focused on the obligations of the employer pursuant to its Collective Agreement with the union. The applicant did not participate in the grievance process which led to the settlement. There is no evidence that there was any consideration of the respondent’s alleged human rights breaches, nor any assessment of remedies for any alleged Code contraventions.
34I also note that the policy grievance was initiated in October 2008 and resolved in March 2009 and hence could not have dealt with any of the allegations in the Application which cover latter 2009 and 2010.
35In my view the settlement of the policy grievance did not appropriately deal with the substance of the Application and, therefore, does not come within section 45.1 of the Code.
Conclusion
36I conclude that neither the WSIB decision nor the resolution of the policy grievance appropriately dealt with the substance of the Application. The respondent’s request to dismiss on the basis of Section 45.1 of the Code is therefore denied.
ORDER
37The Application will proceed in the normal course.
38By no later than 35 days from the date of this Interim Decision, the respondent is directed to deliver to the applicant and file with the Tribunal a full Response to the Application.
39Parenthetically, I note that both parties have agreed to the mediation of this matter.
Dated at Toronto, this 10th day of September, 2012.
”signed by”
Alan G. Smith
Member