Guiseppe Violo v. Maple Leaf Sports & Entertainment Ltd. and Kevin Kempcke, 2012 HRTO 641

Human Rights Tribunal of Ontario

B E T W E E N:

Guiseppe Violo Applicant

-and-

Maple Leaf Sports & Entertainment Ltd. and Kevin Kempcke Respondents

DECISION

Adjudicator: Sherry Liang Date: March 28, 2012 Citation: 2012 HRTO 641 Indexed as: Violo v. Maple Leaf Sports & Entertainment Ltd.

APPEARANCES

Guiseppe Violo, Applicant Rita Di Giannatale, Representative

Maple Leaf Sports & Entertainment Ltd. and Kevin Kempcke, Respondents Gita Anand, Counsel

1This is an Application filed on May 11, 2010 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”). The applicant alleges that his employer discriminated against him on the grounds of disability and age in dismissing him from employment.

2By decision dated August 3, 2011, 2011 HRTO 1451, I directed a hearing to consider the respondent’s request to dismiss the Application under section 45.1 of the Code. The hearing was held on October 31, 2011. For the reasons that follow, I find that the substance of the Application has been appropriately dealt with in an arbitration proceeding and the Application is dismissed.

BACKGROUND

3The applicant was employed by the respondent Maple Leaf Sports & Entertainment (“MLSE”) as a part-time usher. He had retired from a full-time position with the City of Toronto. On July 7, 2009, the applicant’s employment was terminated for excessive absenteeism. He had been employed with MLSE since 1983 and was 75 years of age at the time of his dismissal. The applicant was represented in his employment relations by the Teamsters Local Union 847 (the “Union”), which filed a grievance alleging that the termination was unjust. The grievance proceeded to arbitration on January 5, 2010 and the arbitrator subsequently dismissed the grievance in a decision upholding the termination: Maple Leaf Sports & Entertainment and Teamsters Local Union 847, unreported decision dated January 25, 2010 (C. Schmidt).

4The applicant was not in attendance at the arbitration. In her decision, the arbitrator states:

The Grievor did not attend at the hearing. He was on vacation and was made aware of the hearing date. In the face of the Employer’s request that the grievance be dismissed on this basis of the Grievor’s failure to attend the hearing, the Union proceeded in his absence.

5In their Response, the respondents submitted that the Tribunal should dismiss the Application because the grievance arbitration proceeding has dealt with the substance of the Application. It relied on the arbitration decision stating, among other things, “[a]lthough the Applicant chose not to attend the arbitration hearing, the Union on his behalf raised arguments and requested that the arbitrator consider the attendance issues and absences related to medical issues both pre and post surgery, in determining whether the absence percentage calculation was correctly applied.”

6In addressing the issues raised by the respondents, the applicant stated in his Reply, among other things, that “I do not agree with the way this matter was dealt and the outcome of the other proceedings. I had major surgery, provided ample medical information to that regard, volunteer to provide further medical information and Company was not interested.”

7During the conference call, in addressing whether the grievance arbitration proceeding appropriately dealt with the substance of the Application, the applicant (though his friend) stated for the first time that he had not attended at the arbitration because he was not notified of it by the union. He indicated that, contrary to the statement in the arbitration decision that he was “on vacation”, in fact, he was not, and would not have missed it given the significance of the issues.

8In addition to allegedly failing to give him notice of the hearing, he submitted that his case was not handled properly by his union in a number of ways including failing to provide language interpretation in dealing with him, assigning a representative that did not speak his language (Italian), failing to allow him to submit documentation supporting illness-related absences from work, and generally failing to deal substantively with the issues raised by his grievance.

9During the course of submissions, the applicant’s friend also referred to the fact that the applicant was in possession of further particulars in support of his claim of age discrimination, but did not want to disclose them at this stage.

10Over the objections of the respondent, in my decision of August 3, 2011, I decided that the applicant was not precluded from raising the new matters raised during the conference call. I ordered a hearing to receive evidence and submissions on the request to dismiss. However, I gave specific directions to the applicant about what he must do before the hearing, as follows:

• No later than one month prior to the hearing, the applicant will deliver to the respondents and the Union, and file with the Tribunal, an affidavit setting out all the facts he relies on in relation to his assertions about the fairness of the grievance and arbitration process and the union’s representation of him during the grievance and arbitration process. He will attach to the affidavit all the documents he relies on with respect to these issues;

• By the same date, the applicant will deliver to the respondents and the Union, and file with the Tribunal, particulars of his claim of age discrimination, including the time and place of any relevant conversations or events, and the persons involved;

• By the same date, the applicant will deliver to the respondents and the Union, and file with the Tribunal, witness statements describing the evidence of any additional witnesses who he will call to give evidence at the hearing on the issues of section 45.1 and abuse of process;

• By the same date, the applicant will advise the Tribunal’s Registrar whether he requires language interpretation at the hearing;

11The applicant did not provide any of the material as directed, nor advise the Registrar that he required language interpretation at the hearing. The respondent advised the applicant and the Tribunal, through correspondence on October 17, 2011, that in light of the failure to provide any of those materials, it would object if the applicant sought to give evidence about any of the new matters raised during the conference call.

12At the hearing on October 31, 2011, the applicant was represented by his daughter. She stated that she had not submitted any written particulars as directed because the witnesses that the applicant believed would support his Application were afraid to participate. She also stated that although she had evidence about the claim of age discrimination, it was not with her. When I explained the purpose of the affidavit, which was also to provide particulars of the applicant’s assertions about the fairness of the arbitration process, she stated that she was not aware that she had to provide anything in writing. The applicant did not seek to call any evidence about the matters addressed in the Interim Decision and, in the circumstances, I would not have permitted it.

13The directions in the Interim Decision of August 3, 2011 were clear. Through his representative’s oral submissions during the conference call, the applicant had raised new issues which had not been referred to in his Application, relating to the fairness of the arbitration process. He also indicated that he had details to support his claim of age discrimination, which were different from those included in his Application. Although the respondent objected to the applicant’s reliance on these new matters at this stage of the proceeding, I decided to allow the applicant to pursue these matters, as long as he provided those details in writing.

14Fairness required that the applicant provide details of these allegations in writing. The respondent is entitled to know the case it must meet. The Union is also entitled to know the details of any allegations of misconduct being made against it. By the time of the hearing before me, the applicant had not particularized the allegations made during the conference call of July 29, 2011, and did not provide a reasonable justification for the failure to do so. I will therefore give no weight to those allegations, and will base my decision on the material before me.

THE APPLICATION

15Included with the Application is a letter of termination dated July 7, 2009, in which the company advises the applicant that his attendance rate exceeds the standard set in the collective agreement. The company advises the applicant that his absence rate for the season was 16.28%, and as per the collective agreement, if an employee is absent for more than 10% of their scheduled workdays in a year, that employee’s seniority shall be lost and the employee shall be deemed terminated.

16The applicant submits in his Application that he had major surgery in August 2008. He states that he provided medical evidence initially but then had to miss time on and off after his surgery throughout the season. As he was 75 years old at the time, he had “some bad days which prevented me from attending work.” The applicant asserts that the company knew of his condition and did not ask him for more medical information, which he would have provided if he thought it was needed.

17In the Application, the applicant explained that the Union filed a grievance on his behalf and, during the grievance process, provided further medical information explaining the reasons for his absenteeism. He submits that the company should have accommodated his attendance based on the fact that he had major surgery and that at his age it takes longer to recover. He indicates that while he was missing shifts, the company did not ask for further medical information so he assumed they were accepting that his absences were related to his surgery.

18In the Application, the applicant also indicates that the Union took his grievance to arbitration but that “because of the 10% termination clause” in the collective agreement, the arbitrator does not have the power to reverse the termination.

19In explaining his claim of age discrimination, the applicant states in his Application that “I had to miss work due to my condition and recovery which at my age has a different time span to recover than a younger person.”

20In addressing the arbitration decision, the applicant submits that the “arbitrator did not take in consideration that my absenteeism was due to an illness and or disability and I should be protected under the Act.” In his Reply, he states that “I do not agree with the way this matter was dealt and the outcome of the other proceedings. I had major surgery, provided ample medical information to that regard, volunteer to provide further medical information and Company was not interested.” He also encloses certain medical notes.

THE ARBITRATION DECISION

21Before the arbitrator, the respondent relied on the following article in the collective agreement:

Article 11 – Seniority and Assignment of Work

11.05 The seniority of an employee shall be lost and the employee shall be deemed terminated if he:

(h) is absent for more than (10) percent of his scheduled working days in a year, subject to Articles 13.01 and 14.01 or serious illness, bereavement. Notwithstanding the above, this article is not intended to condone patterned or unexcused absences and no shows.

22Articles 13.01 and 14.01 refer to leaves which are not included in the calculation of the absence percentage, such as pregnancy leave and parental leave. The reference to “year” in the article above refers to the period July 1 to June 30, which the parties treat as a “season”.

23In the arbitration decision, the arbitrator notes that in January 2009, the applicant was informed through a letter that his absence percentage rate halfway through the year was 25%. In the letter, the respondent set out the “deemed termination” clause, the number of approximate events remaining in the season, and encouraged the applicant to ensure that his “employment status is not negatively affected by article 11.05(h)”.

24The arbitrator notes that the applicant’s absence from the workplace between August 5, 2008 and October 11, 2008 due to surgery, and supported by a medical note, was not included in that calculation. The Application indicates that the applicant was also absent on multiple days in July 2008 and nine additional days following October 11, 2008, some before the January 2009 warning letter and some after.

25The Union argued before the arbitrator that the applicant was elderly and did not turn his mind to the issue of producing medical notes for absences in a timely manner. It also argued that absences post-surgery were to be anticipated, and that certain absences should be attributed to the applicant’s recovery. The Union argued that the post-surgery absences should not be counted. The respondent argued that, apart from the absence at the time of the surgery, there was no evidence upon which the arbitrator could attribute the applicant’s absences post-surgery to his medical condition. The respondent also took issue with the timeliness of the applicant’s medical notes, especially as one of them, relating to pre-surgery absences, was not submitted until five months after the termination and sixteen months after the absences.

26As indicated above, in her decision the arbitrator found that the applicant’s absences due to surgery, and for which there was a medical note, were not included in the absence percentage calculation. She also found that even without including the absences before or following surgery for which there were medical notes, albeit one of them very late, the applicant’s absence percentage would still be over the percentage negotiated by the parties. The arbitrator stated

The argument that the Employer should expect illness post-surgery, and that unspecified absences without medical notes should be excused on this general proposition, is not sustainable on the evidence or on the language relating to excused absences in the Collective Agreement.

In this case, the Grievor’s absence percentage for scheduled shifts is undisputedly over the negotiated threshold agreed by the parties. The Grievor is unable to rely on the limited and enumerated circumstances expressly set out in article 11.05(h) to reduce his absence percentage to ten (10) percent. The Collective Agreement stipulates the penalty of deemed termination in the circumstances and I am precluded from altering the penalty by operation of article 10.04 of the Collective Agreement.

27The arbitrator accordingly upheld the applicant’s termination.

SECTION 45.1

28Section 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.

29Section 45.1 of the Code has been the subject of extensive commentary by this Tribunal. In Campbell v. Toronto District School Board, 2008 HRTO 62, I stated that “[i]n addition to issue estoppel and abuse of process, section 45.1 provides a basis for the Tribunal to preclude the re-litigation of issues that have been dealt with in another forum. This provision, along with other parts of the Code, gives expression to a legislative intention to avoid the duplication of proceedings.” [para.61]. It is clear from the decisions of the Tribunal that it places a high value on the finality of litigation, judicial economy, and the recognition that other adjudicative bodies have the responsibility and jurisdiction to interpret and apply the Code. See Noble v. York University, 2009 HRTO 1201 (“Noble”). In Campbell, I also stated that

the question of whether a matter has been dealt with “in substance” does not turn on technical considerations, nor is it dependent on the kind of criteria applied under legal doctrines such as issue estoppel. Further, a decision about whether a matter has been dealt with “appropriately” does not require this Tribunal to be satisfied that it would have reached the same conclusion as that reached in the other forum. Section 45.1 does not require the Tribunal to act like an appellate court.

30Further, the question in determining whether to exercise a discretion under s. 45.1 is not whether an applicant received the result and remedy he or she was 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. See Noble. In Noble, the Tribunal applied section 45.1 in the context of a grievance arbitration decision which allowed a grievance by the applicant, without having to determine whether the actions of the employer violated the anti-discrimination provision of a collective agreement. The Tribunal rejected the argument that because the arbitrator did not determine whether discrimination occurred, section 45.1 did not apply [para. 31].

31For section 45.1 to apply, the Tribunal must be satisfied that the arbitration process was a “proceeding” and that it has “appropriately dealt with the substance” of the Application.

32It is clear that an arbitration process is a “proceeding” for the purposes of section 45.1 of the Code. I therefore turn to consider whether the arbitration “appropriately dealt with the substance of the Application.”

33I find the circumstances of this case to be similar to those before the Tribunal in Qiu v. Neilson, 2009 HRTO 2187 (“Qiu”). In Qiu, the applicant filed a complaint under the Police Services Act (“PSA”) alleging that certain police officers mistreated him. He did not allege that the mistreatment amounted to discrimination under the Code. The applicant also filed an application to this Tribunal alleging that the mistreatment was related to his ethnic origin and race. The investigation under the PSA, which was upheld by the Ontario Civilian Commission on Police Services (“OCCPS”), concluded that there was insufficient evidence to substantiate the applicant’s complaint.

34In considering whether the investigation under the PSA appropriately dealt with the substance of the Application before the Tribunal, the Tribunal stated, at paras. 34-39:

In this case, there is no question that the subject-matter of the [Application] arises from the same facts that provided the basis for the complaint and investigation under the PSA. The PSA complaint filed by the applicant also arises out of and relates to the incident on December 23, 2005.

The next question is whether the substance of the issues was in pith or essence essentially the same. In my view, they are. The applicant raised the same issues as raised in the human rights complaint filed with the Commission, namely that Constable Corpuz punched, beat and hurt him during the course of the incident, that he fabricated a fake plot against the applicant, that he induced and forced the applicant to make a confession, that he filed unwarranted charges against the applicant, and that he insulted the applicant and did him wrong. The statement filed by the applicant in support of his complaint includes the allegation that while at the police station, Constable Corpuz made faces at him, imitated the way the applicant was speaking, and laughed at the applicant. In the materials filed with the police in support of his complaint, the applicant also raises the fact that he is an immigrant from China. This fact is also raised in the submissions filed with the OCCPS in support of its review of the police investigation.

There is no question that, in the material filed in support of the PSA complaint, the applicant does not expressly assert his rights under the Code, nor does he expressly allege that he experienced discrimination because of his ethnic origin or race. Nonetheless, in my view, the factual underpinnings of the allegations raised in the PSA complaint are the same as those for the allegations raised in the human rights complaint. For example, in the PSA complaint, the applicant alleges that he was punched, beaten and hurt by Constable Corpuz in the course of the December 23, 2005 incident. I accept the submission by counsel for the [respondents] that in order to determine whether Constable Corpuz engaged in misconduct, the police investigation necessarily would have to consider whether Constable Corpuz engaged in discrimination contrary to the Code as this forms part of the regulatory Code of Conduct. However, the police investigation would consider even broader matters than that, such as whether Constable Corpuz used excessive force in dealing with the applicant and making the arrest, whether or not such conduct was related to a prohibited ground of discrimination. In contrast, under the Code, it is not sufficient for the applicant merely to prove that excessive force was used. He also would have to prove that such conduct was related to his race or ethnic origin.

As a result, the factual findings made through the police investigation and upheld on review by the OCCPS not only are dispositive of the PSA complaint, but also are dispositive of the issues raised in the human rights complaint, as they deprive the applicant of the necessary factual underpinning required as a first step in supporting his allegations of a violation of the Code.

As a result, given that the factual underpinnings of the allegations in the human rights complaint are the same as the allegations raised in the PSA complaint and that these factual underpinnings form an initial and necessary component of establishing the alleged violations of the Code, I find that in pith and essence the substantive issues are the same.

35The reasoning in Qiu has been followed in other Tribunal decisions. See, for example, S.D. v. Children’s Aid Society of Toronto, 2009 HRTO 2196.

36In the case before me, I find that the necessary factual underpinnings of the allegations in the Application were considered by the arbitrator. In this Application, the applicant asserts that the employer discriminated against him by failing to consider that his absences arose out of surgery-related illness, and by failing to consider that his age prevented him from recovering post-surgery as quickly as a younger person.

37The central issue before the arbitrator was whether the applicant’s termination violated the collective agreement. In arriving at her conclusions, the arbitrator considered whether the applicant’s absences should be counted in the absence calculation based on the exclusions set out in the collective agreement. A significant issue at the arbitration was whether the applicant had evidence supporting the claim that his absences were due to illness. The applicant’s union provided medical evidence (dated five months following his termination), linking some of the absences before the surgery to the condition requiring surgery. Even though it does not appear that this was before the employer at the time of the termination, the arbitrator was prepared to exclude those absences from the calculation.

38The arbitrator concluded that, even without counting the absences for which there was any medical evidence, the applicant’s absences were still in excess of the threshold in the collective agreement and the termination was justified.

39It should be noted that none of the medical evidence provided to the employer at the time of termination, or to the arbitrator, makes any reference to the applicant’s age being a factor in his post-surgery absences.

40As in Qiu, it does not appear that the Union advanced a claim of discrimination at the arbitration. In arriving at her determinations, the arbitrator did not consider or apply the Code. There is no doubt that she had the jurisdiction to consider all the matters raised by this Application, including whether the termination of the applicant was contrary to the Code. Regardless of whether the Code was explicitly considered, the arbitrator made findings about the factual underpinnings which form a necessary component of the applicant’s ability to establish discrimination under the Code. In finding that absences for which there was no evidence of a disability-related need supported the employer’s decision to terminate, the arbitration decision is dispositive of the human rights claim made before me.

41The arbitrator also found that although the applicant was not present, he had notice of the hearing. It was clear to all what the issues in the arbitration were to be. The Union presented argument and evidence on the applicant’s behalf, which she considered.

42In all the circumstances, I find that the arbitration proceeding has appropriately dealt with the substance of this Application.

43I note that just a few days before this hearing, the Supreme Court of Canada issued its decision in British Columbia (Workers' Compensation Board) v. Figliola, 2011 SCC 52, which considers statutory language similar to section 45.1. The parties did not address this decision in their submissions and it is unnecessary for me to rely on it in arriving at my conclusions. The principles expressed there are consistent with my determinations in this case.

44In the result, the Application is dismissed.

Dated at Toronto this 28th day of March, 2012.

”signed by”____________

Sherry Liang Vice-chair