Roselle Beausoleil v. Ontario (Community Safety and Correctional Services), 2013 HRTO 1553

Human Rights Tribunal of Ontario

Between: Roselle Beausoleil, Applicant -and- Her Majesty the Queen in Right of Ontario as Represented by the Minister of Community Safety and Correctional Services, Respondent

Interim Decision

Adjudicator: Naomi Overend Date: September 16, 2013 Citation: 2013 HRTO 1553 Indexed as: Beausoleil v. Ontario (Community Safety and Correctional Services)

Appearances

Roselle Beausoleil, Applicant Marianne Craig, Counsel

Ontario (Community Safety and Correctional Services), Respondent Katie Clements and Marnie Corbold, Counsel

Introduction

1Roselle Beausoleil, the applicant, filed an Application alleging discrimination in employment on the basis of sex contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended. She alleges she was disciplined by her employer for an incident involving an inmate, for which her male counterparts would not have been disciplined.

2The applicant is a Correctional Officer with the respondent. She is a member of the Ontario Public Service Employees Union (“OPSEU”), which filed a grievance on her behalf with respect to this incident. This grievance (and 10 others) went to mediation/arbitration before the Grievance Settlement Board (“GSB”) and a decision was issued even before the respondent filed its Response.

3As a preliminary matter, the respondent requests in its Response that this Application be dismissed under s. 45.1 of the Code. The Tribunal held a preliminary hearing on this matter, after which the parties filed additional written submissions on the impact of recent case law.

Facts

Background

4As noted above, the applicant is a Corrections Officer. She is employed at a maximum security provincial corrections facility. On May 8, 2012, she imposed two sanctions on an inmate, which the respondent asserts were contrary to its policies and directives. There was an investigation, following which the respondent advised the applicant it would put a “Letter of Counsel – Non-Disciplinary” on her file.

5The applicant asserts in her Application that no other corrections officer in her unit has ever been disciplined for the conduct for which she was investigated and disciplined, and that the only reason she was disciplined is that she was the only full-time female officer working in the unit. In her description of the effect of the allegations on her, the applicant asserts that this is part of a pattern of conduct for which she has been spoken to or disciplined in the past.

6The respondent denies that the applicant has been differentially treated, and asserts that the applicant’s conduct warranted the actions it took. It is not appropriate or necessary for me to resolve this factual dispute at this juncture.

The Grievance Process

7Following receipt of the Letter of Counsel on September 5, 2012, the applicant filed a grievance on September 25, 2012. Her summary of the grievance, which appears to have been prepared in early October 2012, mirrors the allegations in her Application. Indeed, the internal memo prepared by the respondent to its designate describes the issue in the grievance as “discrimination based on gender.”

8The parties (i.e., OPSEU and the respondent) agreed to have the matter proceed to a process under the Collective Agreement termed “Mediation-Arbitration Procedure.” There is a separate applicable document termed the “Local Mediation-Arbitration Protocol” (the “Protocol”) that specifies the process in greater detail.

9Under Article 22.16.6 of the Collective Agreement, “grievances involving dismissal, sexual harassment and/or human rights” should proceed through the regular grievance procedure unless the parties agree to the mediation/arbitration procedure. The respondent took the position in its Response that the applicant had agreed to proceed to mediation/arbitration, but at the preliminary hearing before me, the applicant denied that she had ever given her consent to this and the respondents did not appear to dispute her denial. She is not a party to the grievance, and it would appear her consent is not necessary.

10All 11 of the applicant’s outstanding grievances proceeded to a single day hearing/mediation, which took place on November 8, 2012. Brian M. Keller, a Vice-Chair with the GSB, was appointed the mediator/arbitrator in this matter. From the description provided by the parties to me, the process took less than a full day, and appeared to be very much like a mediation. The parties met with the Vice-Chair separately, although at some point, as described below, there was a joint meeting.

11As for the applicant’s involvement, she stated that she met with the Vice-Chair to discuss her 11 grievances for between 20-30 minutes. She had recently had a house fire and had scheduled a meeting at her house to deal with it that day. She was told her presence was not necessary and so left for approximately two hours between 12 and 2 p.m.

12When the applicant returned at 2:00, she said the OPSEU grievance officer and employer representative were meeting with the arbitrator. She was told that it was not necessary for her to attend this meeting and so she did not join them. It appears that the mediation-arbitration ended shortly thereafter.

13The matter did not resolve that day and so the Vice-Chair wrote a decision as per the Protocol. Under the Protocol the Vice-Chair has the discretion to schedule a “one-off date” or refer the matter to schedule an arbitration hearing, but can also make a determination on the basis of “the evidence provided during the mediation session.”

14At the preliminary hearing, counsel for the respondent advised me that the documents before the Vice-Chair would have included the investigation reports and the occurrence reports, which would have been part of the grievance file. OPSEU did not participate in the preliminary hearing before me and so it is not clear what it presented on the applicant/grievor’s behalf at the mediation/arbitration. As specified above, the applicant acknowledged having a 20-30 minute conversation with the Vice-Chair.

The Decision

15The Vice-Chair’s Decision was released on November 13, 2012. It is comprised of four paragraphs. The first paragraph refers to the process, including what was before the Tribunal:

… Suffice it to say that the parties have agreed to a “True Mediation-Arbitration” process, wherein each provides the Vice-Chair with submissions, which includes the facts and authorities each relies upon.

16The Vice-Chair does not refer to the specific grievances in the body of his Decision, nor to the facts or authorities upon which he relies. His findings are found in paragraph 3 of his Decision:

After reviewing the submissions of the parties and the collective agreement, it is my conclusion that some of the grievances have no merit and should be dismissed, others are questionable merit and others may have some merit.

17The Vice-Chair then proceeds to order four remedies, two of which are potentially relevant to the Application before this Tribunal:

2. I order the employer to remove the letters of counsel in the grievor’s file relating to these grievances.

3. I order the employer to arrange for mediation between the grievor and affected managers through the Mediation Network. The grievor is to be entitled to have a support person present during the mediation(s).

18In paragraph 4 of the Decision, the Vice-Chair concludes: “I remain seized as required.” The applicant stated at the preliminary hearing before me that the mediation specified in the order has not taken place, and that the parties have not approached the Vice-Chair for further direction or action.

Decision and Analysis

19The respondent asks that the Tribunal dismiss this Application under s. 45.1 of the Code on the basis that the grievance process has already dealt with the substance of the Application, namely whether the applicant was discriminated against when the respondent sanctioned her for conduct she says her male counterparts are not sanctioned. Section 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.

20The Tribunal’s interpretation of s. 45.1 was affected, and to some extent altered, by the release of the Supreme Court of Canada’s decisions in British Columbia (Workers’ Compensation Board) v. Figliola, 2011 SCC 52 (“Figliola”) and Penner v. Niagara (Regional Police Services Board), 2013 SCC 19 (“Penner”).

21At the preliminary hearing, the parties were not aware of the more recent Penner case. Although they were provided with a copy of it that day, there was insufficient time for them to do much more than superficially review and comment on it, and I indicated that I would allow them to make written submissions on it and the anticipated Interim Decision of the Tribunal in a related matter: Claybourn v. Toronto Police Services Board, 2013 HRTO 1298 (“Claybourn”). The parties have recently filed their written submissions on these two cases.

Was There Another Proceeding?

22This Tribunal has interpreted the term “proceeding” broadly to encompass many administrative and judicial determinations, including grievance proceedings. I am prepared to find for the purposes of this Interim Decision that the mediation-arbitration process was a “proceeding” within the meaning of s.45.1.

Did This Other Proceeding Appropriately Deal with the Substance of this Application?

23In the somewhat unusual circumstances of this case, it is difficult to conclude that the mediation-arbitration process appropriately dealt with the substance of this Application, given that the Vice-Chair does not make specific findings on the grievances. Though he makes orders in the case, he does so on the basis that some of the unspecified grievances before him have “questionable merit and others may have some merit.”

24I do not know what the Vice-Chair decided with respect to the applicable grievance, nor do his reasons make clear whether he considered the applicant’s allegation that she had been the subject of gender discrimination. There is no concern that there would be contradictory findings between the two proceedings given the absence of reasons in the grievance process.

25The respondent argues that I can infer that the Vice-Chair dealt with the substance of this Application on the basis that he ordered the letters of counsel removed from the applicant/grievor’s file. I do not have the other grievances before me, and cannot, therefore, determine whether the applicant has more than one letter of counsel (relating to the grievances) on her file. It is my understanding, based on the submission of counsel for the respondent that the only grievance on which there was a letter of counsel was the one that relates to this Application, but then it is not clear to me why the order refer to “letters” (as opposed to the singular “letter”) of counsel.

26While the majority decision of the Supreme Court of Canada in Figliola emphasized the importance of finality in litigation, it stated at para. 1 that “it may sometimes be the case that justice demands fresh litigation.” The majority decision of the Supreme Court in Penner clarified that adjudicators have the discretion to refuse to dismiss a proceeding where to do so would be unfair to the claimant. The test in Penner was summarized by this Tribunal in Claybourn, at para. 61:

The majority stated that unfairness in applying the doctrine of issue estoppel may arise in one of two main ways: first, the unfairness of applying issue estoppel may arise from the unfairness of the prior proceedings; and second, even where the prior proceedings were conducted fairly and properly having regard to their purposes, it may nonetheless be unfair to use the results of that process to preclude the subsequent claim: para. 39.

27It is clear from the protocol and the submissions before me that the mediation-arbitration process at issue is designed to be an expeditious and efficient manner of resolving workplace disputes between the parties. There is no suggestion that the Vice-Chair conducted himself outside the bounds of the process before him.

28However, in the absence of evidence concerning what was put before the decision maker in the mediation-arbitration process, coupled with the brief reasons of the Vice-Chair, it would be, in the words of Claybourn, “unfair to use the results of that process to preclude the subsequent claim.”

Order

29For all of the above reasons, I make the following order:

a. The respondent’s request to dismiss the Application under s. 45.1 is denied.

b. The parties shall advise the Tribunal within 14 days of the date of this Interim Decision whether or not they wish to participate in mediation. If not, the matter will be scheduled for a hearing.