HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Ezra Taylor Applicant
-and-
Humber River Regional Hospital, Frances Reinholdt, Kelley Kimens, Evangaline Andaya and Catherine Green Respondents
DECISION
Adjudicator: Keith Brennenstuhl Date: January 30, 2013 Citation: 2013 HRTO 172 Indexed as: Taylor v. Humber River Regional Hospital
APPEARANCES
Ezra Taylor, Applicant Self-represented
Humber River Regional Hospital, Frances Reinholdt, Kelley Kimens, Evangaline Andaya and Catherine Green, Respondents Mark Mason, Counsel
Ontario Nurses Association, Proposed Respondent Marcia Barry, Counsel
Introduction
1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment on the basis of race, colour and disability as well as reprisal.
2An Interim Decision was issued on October 7, 2010, 2010 HRTO 2052, deferring the Application pending the conclusion of the grievance process.
3On June 30, 2012, Arbitrator John Stout issued a decision (the “Arbitration Decision”) with respect to a number of grievances that had been filed by the Ontario Nurses Association (“ONA”), the applicant’s bargaining agent, on behalf of the applicant.
4On July 12, 2012, the applicant filed a Request for Order During Proceedings (the “Request”) seeking to proceed with the deferred Application and to add ONA as a respondent.
5On July 27, 2012, the respondents filed a Response opposing the applicant’s request on the basis that the Application should be dismissed pursuant to section 45.1 of the Code because another proceeding, namely the grievance arbitration process, had appropriately dealt with the substance of the Application.
6On August 10, 2012, ONA filed a Response opposing the Request to add it as a respondent because the applicant did not allege facts that could support a finding that it had breached the Code.
7On August 13, 2012, the Tribunal issued an Interim Decision, 2012 HRTO 1561, in which it granted the applicant’s request to proceed with the Application and directed that a half-day hearing by teleconference take place in regards to whether the Application should be dismissed under section 45.1 of the Code and whether ONA should be added as a respondent.
8A hearing by way of teleconference was held on January 23, 2013.
decision
9The Application is dismissed pursuant to section 45.1 of the Code.
Background
10The applicant commenced employment with the Humber River Regional Hospital (the “Hospital”) in 1999 as a full-time nurse. The applicant worked in the Hospital’s intensive care unit from January 2000 until his termination from employment on December 2, 2009.
11Humber has a collective bargaining relationship with ONA. The applicant was, at all material times, a member of the ONA bargaining unit.
12On November 9, 2009, the applicant filed the Application with the Tribunal. In the Application he alleged that he had been discriminated against during his employment at the Hospital in the discipline he received, comments, displays, jokes, harassment or poisoned work environment he experienced, in being denied necessary accommodation or modified work in the workplace, and when his vacation request was ignored and his pay was withheld.
13In 2009, the applicant filed four grievances against the Hospital. His December 4, 2009 grievance included an allegation that the Hospital discriminated and harassed the applicant contrary to the Code. Arbitrator Stout noted in his Arbitration Decision:
The December 4, 2009 grievance includes an allegation that the Hospital discriminated and harassed the Grievor contrary to the Ontario Human Rights Code. The Grievor also filed a Complaint with the Human Rights Tribunal of Ontario (File: 2009-04244-I) setting out his allegations of discrimination and harassment (the “Complaint”)
The Grievor alleges in the December 4, 2009 grievance and in the Complaint that he has been discriminated and harassed based on his race (Jamaican), colour (black), disability (injuries incurred in a car accident) and sex (male). The Grievor also alleges that his discharge was a reprisal for his absence from work due to illness and his family physician’s filing a claim under the Workers’ Safety Insurance Act without his knowledge.
The Grievor provided particulars of his allegations in the Complaint he filed with the Human Rights Tribunal. The Grievor also elaborated on these allegations in his testimony in this matter.
analysis
14Section 54.1 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.
Was there a proceeding for the purposes of s. 45.1?
15It is well established that the grievance arbitration process is a “proceeding” for the purposes of section 45.1 of the Code. See for example: Delos Santos v. Maple Lodge Farms, 2009 HRTO 1690 at para. 20, and Paterno v. Salavation Army, 2011 HRTO 2298 at para. 22.
Did the proceeding “appropriately deal with” the substance of the Application?
16It is clear that the December 4, 2000 grievance was framed to include allegations of discrimination contrary to the Code. Arbitrator Stout indicated such in his Arbitration Decision and further indicated that the Applicant provided particulars of the Application at the grievance hearing. It is also clear from the Arbitration Decision that Arbitrator Stout addressed fully the allegations of discrimination and the evidence tendered as well as the employer’s obligations under the Code. His analysis was comprehensive and detailed and his findings were clear. Arbitrator Stout concluded: “In this case, it is my view that the Grievor has not met the burden of proving discrimination and harassment on the balance of probabilities.”
17In my view, the substance of the Application has been dealt with in the grievance arbitration proceedings. The applicant has had a full and fair opportunity to have his human rights claim considered by an adjudicator who had the jurisdiction to interpret and apply the Code: see British Columbia (Workers’ Compensation Board) v. Figliola 2011 SCC 52 at para 49 (“Figliola”). In the circumstances of this case, I am satisfied that the grievance arbitration has appropriately dealt with the substance of this Application.
18The Applicant argues that the grievance arbitration did not appropriately deal with the substance of the Application. He maintains that Arbitrator Stout was biased against him and that ONA did not properly represent him.
19It is clear, however, that in considering whether the substance of an application has been “appropriately dealt with”, this Tribunal may not evaluate the procedural or substantive correctness of the other proceeding: see Figliola at para 38. Therefore, it is not for me to take into consideration the matters raised by the applicant in assessing whether the Application has been appropriately dealt with.
Adding ONA as a party
20Given that I am dismissing the Application, it is not necessary for me to deal with the Request to add ONA as a party to the Application.
Order
21For the above reasons the Application is dismissed pursuant to s. 45.1 of the Code.
Dated at Toronto, this 30th day of January, 2013.
“Signed by”
__________________________________
Keith Brennenstuhl Vice-chair