Macdonald v. Toronto District School Board, 2013 HRTO 1021

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Bruce Macdonald

Applicant

-and-

Toronto District School Board

Respondent

INTERIM DECISION

Adjudicator: Jay Sengupta

Date: June 6, 2013

Citation: 2013 HRTO 1021

Indexed as: Macdonald v. Toronto District School Board

APPEARANCES

Bruce Macdonald, Applicant

Carolyn Johnston, Counsel

Toronto District School Board, Respondent

Grant Bowers, 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”). The applicant alleges that the respondent discriminated against him on the basis of disability and engaged in reprisals in respect of employment during the period from 2004 through 2008. Among other things, the applicant asserts that he experienced discrimination in scheduling, discipline, comments, and in being denied necessary accommodations in the workplace.

2The hearing into this matter was originally convened on April 14, 2010. A number of preliminary issues were to be addressed in advance of a full hearing on the merits. During the course of hearing submissions on the preliminary issues raised by the parties, the applicant, who was not represented by counsel at that time, sought to adjourn the matter as a result of his illness.

3Specifically, the applicant indicated that he was having trouble concentrating and understanding the proceedings for reasons relating to his disability. The hearing was adjourned as a result of the applicant’s request.

4Subsequently, the Tribunal continued to periodically receive written communications from the applicant seeking to further delay resumption of the hearing until such time as he had retained counsel and/or obtained an independent medical assessment. These communications were characterized as requests for accommodation of the applicant’s disabilities. The Tribunal continued to receive similar requests for approximately two years.

5In a Case Assessment Direction, dated April 24, 2012, the Tribunal directed the applicant to confirm in writing within two weeks of the date of the Case Assessment, whether he intended to pursue this Application further. The applicant communicated with the Tribunal that he did intend to proceed with the Application and had recently retained counsel. As a result of the update provided, the preliminary hearing was reconvened during which the Tribunal heard the submissions of both parties on the outstanding preliminary issues.

6The parties made submissions on whether parts of the Application were barred by reason of delay and whether some or all of the Application should be dismissed under the doctrine of abuse of process or pursuant to section 45.1 of the Code because the substance of the matter before the Tribunal had been appropriately dealt with in another proceeding, specifically two grievances filed by the applicant’s union on March 28, 2007 and December 7, 2007.

7These grievances were referred to arbitration, where, with the assistance of Arbitrator William Kaplan, the parties to the grievance entered into minutes of settlement dated November 2008. The minutes were signed by the applicant as well as the union and the employer.

8For the reasons that follow, some aspects of the Application are dismissed under the abuse of process doctrine and some on the basis of delay. The balance of the Application will proceed to a hearing on the merits. The scope of the matters to be heard is defined at the close of this Interim Decision.

Section 45.1 / Abuse of Process

9Section 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.

10Section 23(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, as amended, provides that a tribunal may make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes.

11The respondent has sought dismissal of portions of the Application on the basis of either s. 45.1 of the Code or the doctrine of abuse of process.

12Two grievances were advanced by the applicant’s union. The first grievance was precipitated by a discipline letter, dated March 8, 2007, and concerned an alleged failure by the applicant to attend a professional development training event and his lateness. The second concerned a letter dated December 5, 2007, which involved the applicant’s alleged failure to issue an IEP when requested to do so by a vice-principal and disparaging remarks allegedly made by the applicant about a principal’s ability to work with people with disabilities and racialized students.

13In filing both grievances, among the various grounds cited for the grievances, the union referred to a violation of the applicant’s rights under A.9.0 of the Collective Agreement, a portion of which is reproduced below:

A.9.2 Both the Board and the Union shall comply with the Ontario Human Rights Code. Any alleged violation shall be dealt with pursuant to the procedure in the Code.

14Both grievances were advanced to arbitration and with the assistance of Arbitrator William Kaplan, resulted in Minutes of Settlement, dated November 11, 2008.

15The applicant concedes that the proceeding before Arbitrator Kaplan is a “proceeding” under s.45.1 of the Code, but argues that the substance of the matters relating to the matters before the Tribunal have not been appropriately dealt with. The applicant takes the position that none of his Code issues were dealt with in the proceedings.

16In support of this proposition, he relies on the following arguments:

(a) There was no discussion of human rights matters during the proceeding and the minutes do not contain any reference to the Code;

(b) The minutes did not include a release;

(c) The minutes contain language that states that the settlement is being entered into without prejudice to any other proceedings; and

(d) The respondent has breached the terms by sending a notification to the Ontario College of Teachers about the applicant.

17Although the grievances were framed broadly and specifically raised allegations of a breach of the applicant’s rights under the Code, the applicant states that Code issues were not part of the settlement discussions and are not referred to in the settlement agreement.

18The applicant argues that the onus falls on the party seeking to rely upon section 45.1 to show that the other proceeding appropriately dealt with the subject matter of the Application and that section 45.1 imposes a positive obligation and requires that the respondent shows that human rights principles were considered in the other proceeding. See, for example, Byaruhanga v. Toronto Police Services Board, 2010 HRTO 2273.

19In my view, this is a circumstance where the doctrine of abuse of process applies.

20In Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44 the Supreme Court of Canada writes the following regarding the doctrine of abuse of process:

The law rightly seeks a finality to litigation. To advance that objective, it requires litigants to put their best foot forward to establish the truth of their allegations when first called upon to do so. A litigant, to use the vernacular, is only entitled one bite at the cherry … An issue, once decided, should not generally be re-litigated to the benefit of the losing party and the harassment of the winner. A person should only be vexed once in the same cause. Duplicative litigation, potential inconsistent results, undue cost, and inconclusive proceedings are to be avoided.

21The Tribunal has dismissed applications as an abuse of process where an applicant has entered into a settlement resolving his or her outstanding employment issues. It has done so even where the settlement agreement did not contain specific release language between the parties, but where it was apparent from the agreement that the parties intended to bar future litigation with respect to all outstanding issues, including human rights issues: see Messiah v. Snap-on Tools of Canada, 2010 HRTO 1151, and Holowka v. Ontario Nurses Association, 2010 HRTO 2171.

22The two grievances in question raise the same factual issues as part of this Application. The grievances were settled and the applicant derived benefit from the settlement. The respondent, in turn, performed certain acts in reliance upon the terms of settlement. Notwithstanding the Minutes of Settlement, the applicant seeks to put the same factual issues before the Tribunal because he says the settlement did not address his concerns from a human rights perspective.

23As the Supreme Court of Canada indicated in Danyluk, above, a litigant is required to put his best foot forward to establish his allegations when first called upon to do so. In my view, the same principle applies to matters that are settled. The grievances included an allegation that the applicant’s Code rights had been infringed. After a settlement of the grievances agreed to by all parties, and signed by the applicant, it would amount to an abuse of process to now permit the applicant to argue that the settlement did not address all possible aspects of his claim, including the Code issues that were specifically referenced in the originating documents that set the grievance process in motion.

24The applicant’s argument that the minutes were entered into on a without prejudice basis is somewhat misleading. The term in question reads as follows:

The parties agree that these Minutes of Settlement are without prejudice and precedent to any other matters between the Union and the Employer.

25The term in question speaks to the settlement being “without prejudice or precedent” with respect to other ongoing or contemplated matters between the union and the employer. There is nothing in the language reproduced above that would suggest that the parties contemplated that the issues in dispute, that were the subject of the settlement being entered into, would be resuscitated and relitigated in an Application filed one month later by the applicant.

26In addition, the applicant’s suggestion that the respondent’s reporting of disciplinary action taken to the Ontario College of Teachers constituted a material breach has no merit. The respondent argues, and I accept, that section 43.2 of the Ontario College of Teachers Act, 1996, S.O. 1996, c. 12 requires that they file such a report within a specified time.

27For the reasons stated above, I find that the substance of the matters addressed by the grievance proceedings, and that have also been raised in this Application, are dismissed as an abuse of process.

28Given my findings on the abuse of process issue, it is not necessary for me to deal with the issue of dismissal of portions of the Application pursuant to section 45.1.

Delay

29Section 34 of the Code provides that a person may file an Application alleging that his or her rights under the Code have been infringed within one year of the incident (or within one year of the last incident, if there was a series of incidents) to which the Application relates. It also provides that a person may not apply to the Tribunal more than a year after the incident to which the Application relates unless the Tribunal is satisfied that the delay in filing the Application was incurred in good faith and that no one would be substantially prejudiced by the delay.

34. (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.

30The applicant’s allegations relating to his requests that he be allowed not to participate in particular duties and functions, such as attendance at workshops or professional development training events, culminated in the disciplinary processes that have been addressed above. Given my ruling that the matters addressed in the Minutes of Settlement entered into a month before the filing of the Application are barred from proceeding under the doctrine of abuse of process, there are no incidents in that series that have been filed within the one year time limit.

31The Tribunal has set a fairly high onus on applicants to provide a reasonable explanation for the delay. See for example, Klein v. Toronto Zionist Council, 2009 HRTO 241. The Tribunal has repeatedly expressed the view that the mandatory one-year limitation period is consistent with the Code’s objective that human rights claims should be dealt with fairly and expeditiously.

32In order to satisfy the Tribunal that the delay was incurred in good faith, the applicant must provide a reasonable explanation as to why he or she did not pursue his or her rights under the Code in a timely manner: Corrigan v. Peterborough Victoria Northumberland and Clarington Catholic District School Board, 2008 HRTO 424; Cartier v. Northeast Mental Health Centre, 2009 HRTO 1670. Good faith is more than just the absence of bad faith. To succeed under s. 34(2) the applicant has to show he acted with all due diligence: Reid v. Ontario March of Dimes, 2009 HRTO 2207.

33The applicant has not persuaded me that there are any good faith reasons for the delay and that he acted with all due diligence and, as a result, I find that his allegations with respect to the above which are alternatively characterized as a failure to accommodate, harassment and reprisal are barred as untimely.

34The respondent does not dispute that there have been ongoing requests for accommodation with respect to the applicant’s physical work location since 2004 when the applicant requested that he be provided with a particular classroom assignment. The respondent does, however, argue that there has been a break of more than a year since the initial request, thereby causing a break in the series of incidents of alleged discrimination.

35The applicant, for his part, argues that since June 2004, he has continued to make requests for accommodation related to his disability which have been ignored by the respondent. He says that each request he has made has been designed to address his physical work environment, to limit social interaction with his peers and to address the nausea and fatigue he experiences during his work day.

36He indicates that the respondent’s continuing failure to address his requests has resulted in forcing him to remain off work for periods of time in receipt of long term disability benefits. Those periods when but for the respondent’s discriminatory conduct, he could have been in the workplace, he argues, should not result in a dismissal of portions of his Application for delay.

37The respondent indicates that between 2004 and September 2006, at which time the applicant returned to work, in order to have been in receipt of LTD benefits, the applicant would have to have been found to be totally unable to perform his own occupation. Given this break in the timeline, the respondent argues that the series of events can only go back to September, 2006, and that the balance of allegations concerning accommodation of the applicant’s disabilities in respect of his physical work location that predate that period of time would be out of time.

38I accept the respondent’s argument in this regard. In my view, the applicant’s argument that had it not been for the respondent’s failure to provide him with the classroom he requested, he would have been able to work is not borne out. It would be inconsistent for the applicant to now allege that despite having received long term disability benefits during an approximately two year period between 2004 and 2006, presumably on the basis of being totally disabled from performing the essential tasks associated with his own job, the respondent should or could now be found to have failed in its obligation to accommodate him.

39The applicant has not persuaded me that there are good faith reasons for his failure to raise his issues concerning workplace location for the time period preceding 2006. As such, it is unnecessary for me to turn to the question of any resulting prejudice to the respondent.

40The hearing into this matter will, as a result of my earlier findings, focus on the issue of accommodation requests made with respect to physical work environment that postdate September 2006.

41The remaining allegations contained in the Application are dismissed pursuant to the abuse of process doctrine or by reason of delay in raising them.