Kimberley Klonowski v. Ontario (Community Safety and Correctional Services), 2013 HRTO 1534

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kimberley Klonowski

Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Minister of Community Safety and Correctional Services

Respondent

DECISION

Adjudicator: Sheri D. Price

Date: September 13, 2013

Citation: 2013 HRTO 1534

Indexed as: Klonowski v. Ontario (Community Safety and Correctional Services)

APPEARANCES

Kimberly Klonowski, Applicant

Timothy Bingham, Counsel

Her Majesty the Queen in Right of Ontario as represented by the Minister of Community Safety and Correctional Services, Respondent

Caroline Cohen, Counsel

INTRODUCTION

1On July 5, 2012, the applicant filed this Application under s. 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging that the respondent employer reprised against her for claiming and enforcing her rights under the Code and/or for instituting or participating in proceedings under the Code, contrary to s. 8 of the Code (“the Application”). In particular, the applicant alleged that the respondent denied her access to a voluntary exit opportunity in or around the spring of 2012 in retaliation for the applicant having filed another Application under the Code against the respondent in 2010 (“the 2010 Application”). The 2010 Application alleged discrimination with respect to employment because of disability. It was dismissed by the Tribunal in August 2012 on the basis that there was no reasonable prospect that the Application would succeed: 2012 HRTO 1568.

2In the current Application, the applicant acknowledges that the facts and issues raised in the Application are the same as those raised by her in a June 15, 2012 grievance that she filed against the respondent employer, pursuant to a collective agreement between the respondent and the applicant’s trade union, the Ontario Public Service Employees’ Union (“OPSEU”).

3The applicant’s June 2012 grievance was referred to arbitration before the Grievance Settlement Board (“GSB”), pursuant to the Crown Employees Collective Bargaining Act, 1993, S.O. 1993, c. 38 (“CECBA”). A decision denying the applicant’s June 2012 grievance was issued by the GSB on November 21, 2012: 2012 CanLII 76566 (ON GSB).

4On December 17, 2012, the respondent filed a Request to Dismiss the Application on the basis that the labour arbitration proceeding before the GSB had appropriately dealt with the substance of the Application within the meaning of s.45.1 of the Code.

5The Tribunal directed that a summary hearing be convened pursuant to Rule 19A of the Tribunal’s Rules of Procedure to determine whether the Application ought to be dismissed pursuant to s.45.1 of the Code on the basis that the GSB’s November 2012 decision “appropriately dealt with” the substance of the Application; and/or whether the Application should be dismissed as having no reasonable prospect of success.

6The summary hearing took place on June 24, 2013. The applicant and the respondent were both represented at the hearing by their counsel. The applicant’s trade union, OPSEU, was given notice of the summary hearing, but did not attend.

REQUEST TO AMEND

7Shortly before the summary hearing, on June 7, 2013, the applicant filed a Request to Amend her Application to include certain additional allegations. In particular, the applicant sought to amend her Application to include the allegation that the respondent employer’s failure to investigate the reprisal allegations contained in the applicant’s June 2012 grievance and the instant Application constituted a further reprisal.

8The respondent opposes the applicant’s request. It submits that the applicant is merely attempting to expand the scope of her original human rights Application to include something that has not already been dealt with in the GSB proceeding, so that she can avoid having her Application dismissed pursuant to s.45.1 of the Code. It submits that the Request to Amend ought to be denied by the Tribunal.

9I should note that, in her June 2013 Request to Amend, the applicant also alleged that the respondent reprised against her by failing to conduct an internal investigation into allegations of Code infringements contained in the applicant’s 2010 Application and other grievances. However, these allegations were withdrawn by the applicant during the summary hearing, in response to the respondent’s argument that such allegations ought to be dismissed on the basis of delay, pursuant to s.34(1) and (2) of the Code.

ANALYSIS AND DECISION

Allegations in original Application appropriately dealt with

10At the outset of the summary hearing, the applicant, through her counsel, conceded that the allegations contained in the Application that was originally filed with the Tribunal in July 2012 had been appropriately dealt with by the GSB when it determined the applicant’s June 2012 grievance against the respondent employer; and that such allegations ought to be dismissed pursuant to s.45.1 of the Code.

11In determining whether s. 45.1 of the Code applies, the focus is on whether the applicant had the opportunity to have the human rights issues in her Application considered by an adjudicator with jurisdiction to interpret and apply the Code. In this case, it is clear, pursuant to a combined reading of s. 2 of the CECBA and s. 48(12) (j) of the Labour Relations Act, 1995, S.O. 1995, c 1, Sch. A, that the GSB had jurisdiction to interpret and apply the Code when it decided the applicant’s June 2012 grievance, which grievance raised the same issues as the July 2012 human rights Application. Accordingly, I agree with the parties that the proceeding before the GSB appropriately dealt with the substance of the allegations contained in the Application that was originally filed with the Tribunal. Those allegations are dismissed pursuant to s.45.1 of the Code.

12This leaves the following issues to be determined: (1) whether the applicant ought to be permitted to amend her Application to include the allegations contained in her June 2013 Request to Amend; and (2) if so, whether the applicant has any reasonable prospect of success in proving that the respondent infringed her rights under the Code in the manner alleged in the Request to Amend.

Reprisal Claim in Request to Amend

13In the circumstances of this case, it is not necessary for me to determine the first issue, namely whether the applicant’s Request to Amend ought to be granted. This is because, even if I were to grant the applicant’s Request to Amend, I find that the applicant has no reasonable prospect of proving the reprisal claim in her Request to Amend.

14The respondent has an internal Workplace Discrimination and Harassment Prevention (“WDHP”) Policy that aims to prevent workplace discrimination and harassment and to provide for effective response to issues of workplace discrimination and harassment. Among other things, the WDHP policy requires the respondent’s managers to “act immediately upon becoming aware of potential policy violations, whether or not a complaint has been filed.”

15In this case, the applicant contends that the respondent “became aware” of a potential policy violation when she filed her June 2012 grievance and her July 2012 human rights Application, alleging that the respondent reprised against her by denying her a voluntary exit opportunity. The applicant alleges that the respondent was therefore obliged to investigate the applicant’s reprisal allegations under its WDHP Policy. However, it did not do so. The applicant contends that this failure to investigate her 2012 reprisal claim was in and of itself a reprisal against her for claiming and enforcing her rights under the Code.

16The applicant acknowledges that, in addition to filing a grievance and a human rights Application against the respondent, she could have also filed a complaint under the WDHP Policy, which would have triggered an investigation under the Policy. However, she did not do so. The applicant submits that, notwithstanding her failure to file a WDHP complaint, the respondent was obliged to initiate a WDHP investigation into her 2012 reprisal allegations. Had it done so, the applicant submits that she would have learned very quickly, through the WDHP process, that she had not been unfairly deprived of a voluntary exit opportunity; and that the opportunity in question had been rightly given to another more senior employee. Instead, the applicant submits that she did not learn the relevant facts until her grievance went to arbitration, and that this caused her to suffer a lot of unnecessary stress.

17In my view, the applicant’s reprisal claim has no reasonable prospect of success.

18In order to prove reprisal, the applicant would have to establish that the respondent took some action against her because the applicant had engaged in one of the activities identified in s. 8 of the Code, namely, claiming or enforcing her rights under the Code; instituting or participating in proceedings under the Code; or refusing to infringe the rights of another person under the Code.

19In addition, the applicant would have to establish that the respondent’s actions were taken with intent to punish or retaliate. Jones v. Amway of Canada Ltd., [2002] O.J. No. 1504 (Div. Ct.) at para. 11; Noble. v York University, 2010 HRTO 878; Guild Automotive Restorations Inc. v. Pilkey, 2013 ONSC 3129, at para. 13-21.

20In this case, there is no doubt that the applicant was claiming and/or enforcing her rights under the Code when she filed her June 2012 grievance and July 2012 human rights Application against the respondent alleging reprisal.

21However, I do not see how the applicant can establish that, by failing to initiate a WDHP investigation into the allegations in her grievance and human rights Application, the respondent was taking action against the applicant for having claimed her rights under the Code. During the relevant time frame, the respondent was responding to the applicant’s allegations through the grievance procedure and also the human rights process. It seems to me that the respondent would have had no reason to think that the applicant also wished to have the matter addressed through yet a third process under the WDHP Policy. This is particularly so given that the applicant herself could have easily initiated such an investigation, by filing a complaint under the Policy, if she had wished to do so. In the circumstances, I do not think that the applicant has any reasonable prospect of proving that the respondent’s failure to conduct a WDHP investigation into her 2012 allegations was an act of retaliation, linked to the applicant having claimed and enforced her rights under the Code.

22In any event, even if the applicant were able to establish that the respondent’s failure to initiate a WDHP investigation was linked to the applicant having claimed her rights under the Code, in my view, the applicant has no reasonable prospect of proving that such failure was motivated by an intention to punish the applicant.

23During the summary hearing, the applicant was unable to point to any evidence by which she might prove that the respondent’s failure to investigate under the WDHP policy was an attempt to punish the applicant for filing her 2012 human rights Application. The applicant submits that the requisite punitive intent can be inferred from the fact that, by failing to initiate an investigation, the respondent contravened its own policy. (Dhaliwal v Treasury Board (Solicitor General Canada – Correctional Service), 2004 PSSRB 109 at para. 93.) However, I do not agree. Even if the applicant is correct that the respondent’s actions were inconsistent with its policy, in the circumstances of this case, such inconsistency is not a basis upon which the Tribunal might conclude that the respondent intended to retaliate against the applicant. In my view, the mere fact that the respondent failed to conduct a WDHP investigation into allegations that it was already responding to through the grievance procedure and/or at the Human Rights Tribunal of Ontario is entirely insufficient to establish that the respondent intended to punish the applicant for claiming her rights under the Code.

24For the above reasons, I find that the applicant’s reprisal claim has no reasonable prospect of success. The Application is dismissed accordingly.