Jonathan Guider v. Craigwood Youth Services, 2012 HRTO 2385

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jonathan Guider

Applicant

-and-

Craigwood Youth Services, Graham Ashbourne, Kathryn Hogan, Lothar Liehman and Sherri Whitman

Respondents

DECISION

Adjudicator: Jo-Anne Pickel

Date: December 20, 2012

Citation: 2012 HRTO 2385

Indexed as: Guider v. Craigwood Youth Services

APPEARANCES

Jonathan Guider, Applicant

Self-represented

Craigwood Youth Services, Graham Ashbourne, Kathryn Hogan, Lothar Liehman and Sherri Whitman, Respondents

Peter Thorup, Counsel

Introduction

1The applicant alleged that his employer and management staff harassed and discriminated against him on the basis of family status, disability and sex, and reprised against him contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). Among other things, he alleged that the respondents restricted his work opportunities, treated him differently and failed to accommodate his disability and family status.

2In addition to filing an Application with the Tribunal, the applicant challenged his employer’s alleged actions by filing a grievance with his union. As described below, the circumstances surrounding the arbitration of the matter were unusual due to the death of the arbitrator initially appointed to hear the grievance. However, with the parties’ consent, the hearing was continued by a different arbitrator who issued a decision determining, among other things, that the employer had not violated the Code.

3This decision deals with whether the Application should be dismissed, in whole or in part, under s. 45.1 of the Code because the substance of the Application has been appropriately dealt with in the arbitration proceedings. Having considered the parties’ submissions and the caselaw applicable under s. 45.1 of the Code, I find that this Application should be dismissed.

background

4The applicant is or was employed as a child and youth worker with the organizational respondent. He was also a union steward and one of the union’s health and safety representatives. The applicant raised several allegations of discrimination, harassment and reprisal in his Application with respect to incidents that spanned a period of several years. Among other things, he alleged that his employer failed to accommodate his family status and disability and reprised against him when it removed some of his preferred job duties because he had taken parental leave and time off work for a medical issue. He alleged that his employer also failed to accommodate his family status when it scheduled a promotion interview at a time when his wife was scheduled to have an ultrasound. He also alleged that a supervisor harassed and discriminated against him on the basis of family status when she referred to him as a “breeder”. Finally, he alleged that his employer failed to accommodate stress-related disabilities he developed as a result of the respondents’ allegedly harassing and discriminatory actions against him.

5The applicant is represented by the Ontario Public Service Employees Union. Prior to filing his Application, the applicant had filed a grievance through the union in which he alleged that his employer had harassed, discriminated, and reprised against him on the basis of family status and union activity, and because he sought to enforce certain employment-related statutes in the workplace. The union referred this grievance to arbitration and one of the union’s counsel represented him at the arbitration.

6By Interim Decision dated August 31, 2009, the Tribunal deferred consideration of the Application pending the outcome of the arbitration process.

the arbitrator’s conclusions

7The applicant’s union and the employer consented to have Arbitrator Reilly hear and determine the grievance. Unfortunately, Arbitrator Reilly passed away before the conclusion of the case. Upon the arbitrator’s death, the employer and the union agreed that Arbitrator Morgan would assume the role of arbitrator for the purpose of completing the matter and rendering a final award. Arbitrator Morgan had attended previous hearing days to assist Arbitrator Reilly. He also had discussed with Arbitrator Reilly his(Arbitrator Reilly’s) general intentions with respect to the outcome of the case.

8Early in the arbitration before Arbitrator Reilly, the employer brought a motion seeking that the grievance be dismissed on the basis that the union had failed to show a prima facie case of discrimination or interference with union rights. In an interim decision, Arbitrator Reilly refused to consider the motion until more evidence had been called in the case. He directed the parties to first proceed with evidence and legal argument with respect to the claim that the grievor had been mistreated due to his union activity. Arbitrator Reilly stated that he would then “review the remaining claims of wrongdoing with the parties and how the evidence (if any) is to be introduced.”

9The parties proceeded to call evidence over five more hearing days before Arbitrator Reilly and to make final argument before Arbitrator Morgan. In his final award dated October 1, 2011, Arbitrator Morgan refers at length to the allegations contained in the applicant’s Application to the Tribunal. According to the Arbitrator, these allegations were further described via the applicant’s oral evidence before the arbitrators. Arbitrator Morgan commented that the union had “left ‘no stone unturned’ with respect to their attempts to present all of the grievor’s concerns with respect to said alleged violations of his human rights.” (para. 44) At several points in his decision, Arbitrator Morgan referred to evidence that had been adduced in relation to the applicant’s Code-related claims and made findings of fact in respect of these claims.

10Arbitrator Morgan noted that the Labour Relations Act, 1995, S.O. 1995, c. 1, Schedule A provides arbitrators with the power to interpret and apply employment-related statutes such as the Code. He stated that it was both his and Arbitrator Reilly’s intention to employ these powers to make a final determination of all the issues relating to the grievance.

11Arbitrator Morgan dismissed the applicant’s Code-related claims stating at paras. 54-55 and 58-59:

In the matters placed before Arbitrator Reilly and subsequently myself, one cannot identify a pattern of “repetitive, unwelcome and offensive behaviour.” The majority of the grievor’s allegations arose out of situations where attempts were made by the employer to address certain work ‘deficits’ of the grievor. The remainder was related to comments made by a member or members of the management team which the grievor took offense to. It should be noted that one such comment was not made directly to the grievor; instead the remark was passed on to the grievor by a co-worker. Nevertheless, these remarks were unfortunate, or as Arbitrator Reilly described them in his notes “in very poor taste”.

However, there is no finding that they constitute “harassment” as defined by the arbitral jurisprudence.

It is clearly evident that the grievor holds little respect for the work performed by the employer’s managerial group. This was a view strongly held by Arbitrator Reilly. It is further clear that the employer has been made aware of his views on a number of occasions. The grievor must be said to have been the author of his own misfortune by virtue of his behaviour.

As a result, it is found that the grievor has not been harassed with respect to the issues of job promotion, workplace accommodation and parental leave.

12Arbitrator Morgan did find that the employer had interfered with the applicant’s union activity contrary to the collective agreement and the Labour Relations Act. This finding was largely based on a supervisor’s admission that she had told the applicant that he should cut back on his union activity because it was interfering with his work.

13The applicant’s union ultimately decided not to seek a judicial review of Arbitrator Morgan’s award.

the tribunal process

14On March 8, 2012, the Tribunal wrote to the applicant requesting an update on the status of his intentions with respect to his deferred Application. The applicant responded by advising that an arbitration award had been rendered in respect of his grievance. He advised that he wished to reactivate his Application before the Tribunal since in his view the award did not appropriately deal with his Code-related claims.

15By Interim Decision dated July 27, 2012, the Tribunal granted the applicant’s request to reactivate his Application. However, it ordered a hearing into whether all or part of the Application should be dismissed under s. 45.1 of the Code on the basis that another proceeding had appropriately dealt with the substance of the Application. The applicant’s union was given notice of the hearing but it did not participate.

the parties’ submissions

16The respondents took the position that the Application should be dismissed in its entirety on the basis of res judicata and because the arbitration had appropriately dealt with the substance of the Application. They submitted that the material facts and issues raised in the Application are identical to those considered and disposed of in Arbitrator Morgan’s award.

17The applicant argued that the Application should not be dismissed because he and his union did not have the opportunity to call evidence and make legal argument specifically on his Code-related claims. The applicant pointed to the passage from Arbitrator Reilly’s interim decision in which he stated that the parties would first proceed with evidence relating to the union interference portion of the grievance before he reviewed the remaining claims of wrongdoing with the parties and how the evidence (if any) was to be introduced. According to the applicant, the union’s understanding was that it was to address the union interference issue first and that it later would have an opportunity to call further evidence and make submissions on the applicant’s Code-related claims. For these reasons, the applicant argues that the arbitration did not appropriately deal with the substance of his Code-related claims and therefore that his Application should proceed before the Tribunal.

18In reply, the respondents’ counsel disputed the applicant’s claim that the union had not had an opportunity to address the applicant’s Code-related claims in the arbitration. The respondents’ counsel argued that the applicant did in fact have an opportunity to present evidence relevant to the human rights aspect of his grievance over the course of the six hearing days on which evidence was called. He also reiterated that the arbitral award expressly made findings of fact in regards to the applicant’s Code-related claims and ultimately dismissed this aspect of the grievance.

analysis

19Section 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.

20It 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: Paterno v. Salvation Army, 2011 HRTO 2298 at para. 22. The key question in this case is whether the arbitration proceeding appropriately dealt with the substance of the Application.

21In British Columbia (Worker’s Compensation Board) v. Figliola, 2011 SCC 52, [2011] 3 S.C.R. 422, the Supreme Court of Canada considered a provision similar to s. 45.1 in British Columbia’s Human Rights Code, R.S.B.C. 1996, c. 210. In assessing whether the substance of a complaint has been dealt with in another proceeding the court stated in Figliola, at para. 37 that a Tribunal should ask itself the following questions:

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.

22Significantly, the Court went on to state at para. 38:

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.

23In this case, there was no dispute that the applicant’s Application raised the same Code-related claims that were raised in his grievance and that were determined by Arbitrator Morgan. It is clear from the materials that the applicant and his union knew the case that had to be met to make out his Code-related claims. The key question is whether he and his union had a chance to meet it. As noted above, the parties disagree on the extent to which the applicant had a chance to introduce evidence and make legal submissions with respect to his Code-related claims. As noted above, the applicant suggests that, due to Arbitrator Reilly’s comments in his interim award, he and his union believed they would have the opportunity to present further evidence and submissions on the Code-related part of the grievance at a later stage of the process.

24Since there is no transcript of the arbitration proceeding, it is impossible for the Tribunal to determine with precision the extent to which the applicant had the opportunity to present evidence and make submissions with respect to his Code-related claims. However, from Arbitrator Morgan’s award, it is clear that the applicant did advance evidence relating to these claims. As well, based on the arbitral award, it is evident that there was a considerable degree of overlap between the applicant’s claims of union interference and his Code-related claims. Many of the incidents raised by the applicant gave rise to both types of claims – i.e. that he was being harassed, discriminated or reprised against on a Code ground and/or on the basis of his union activity. It may be for this reason that the arbitrator determined the Code-related claims as well as the union interference aspect of the grievance.

25In any event, the key for the purposes of this decision is that the parties consented to have all parts of the grievance determined by Arbitrator Reilly and later by Arbitrator Morgan. From the arbitration award, it is evident that the arbitrators heard evidence over several hearing days relating to the incidents that the applicant alleged to constitute violations of the Code. Finally, and most significantly, Arbitrator Morgan then rendered a decision expressly considering and disposing of the applicant’s Code-related claims.

26For the applicant to succeed in this Application, the Tribunal would have to make findings of fact and legal rulings contradicting the arbitrator’s conclusions, in effect overruling the arbitrator’s decision. The Supreme Court of Canada’s decision in Figliola makes clear that section 45.1 does not confer such authority on the Tribunal. In accordance with the Supreme Court’s decision in Figliola, if the applicant and his union believed that they were denied procedural fairness by not having an opportunity to more fully advance their case before Arbitrator Morgan, the appropriate route for challenging this was through judicial review of the arbitration award, not by proceeding with the Application before the Tribunal.

27For the reasons set out above, this Application is dismissed.