HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Dwayne Twyne
Applicant
-and-
Dominion Colour Corporation
Respondent
INTERIM DECISION
Adjudicator: Eric Whist
Indexed as: Twyne v. Dominion Colour Corporation
APPEARANCES
Dwayne Twyne, Applicant
Self-represented
Dominion Colour Corporation, Respondent
Lisa Goodfellow, Counsel
Teamsters Local 1979
Steve Rodrigues, Representative
Introduction
1This is an Application filed on November 11, 2012, under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Application alleges discrimination with respect to employment because of sexual orientation. The Application alleges that during the period 2000 to 2012 the applicant was subject to discriminatory treatment for being a homosexual male including being harassed, subject to excessive discipline and being laid off. The Respondent denies the allegations and as part of its Response asks that the Application be dismissed on the basis that some of the Application’s allegations are untimely and others were raised and appropriately resolved under the grievance process. The respondent further submits that it would be an abuse of process to allow those allegations that were subject to the grievance process to proceed.
2In a Case Assessment Direction dated June 20, 2013, the Tribunal determined that a preliminary hearing would be held by teleconference to consider the preliminary issues raised by the respondent. The hearing was held on September 19, 2013 by teleconference. I heard submissions from the applicant, the respondent and the applicant’s bargaining agent, Teamsters Local 1979.
BACKGROUND
3The applicant has been employed by the respondent since 1991, most recently as a grinder. In his Application he alleges that:
Offensive objects were put in his locker by fellow employees (e.g. dildos, a mug with a penis) and when he complained his supervisors failed to respond to this harassment. These allegations are undated.
In 2000 a supervisor made offensive comments related to the applicant’s sexual orientation. In 2002/2003 a fellow employee made derogatory comments related to the applicant’s sexual orientation for which he was not disciplined.
In January 2007 he applied for a Quality Control (QC) technician position only for the respondent to take down the job posting once it learned he was the only applicant.
In November 2010 a supervisor, while treating him for a minor cut, put on rubber gloves and told him that he did not want to get AIDS.
In March 2011 the respondent held a job competition for two QC technician positions. The applicant was one of the successful candidates. The applicant alleges the respondent then proceeded to treat him in a discriminatory manner by providing him with less training than the other successful candidate, by disciplining him on August 16, 2011 for having made a testing error (he was given a written warning), by micromanaging his performance on August 19, 2011 and then by demoting him back to a grinder position in September 2011.
On December 7, 2011, he left the plant without punching out in order to get a coffee and was suspended one day although he and other employees had done this previously.
He was laid off from January to March 2012 although other employees with less seniority were not.
On March 13, 2012, a supervisor claimed to have been unable to contact him in order to inform him of the need to return to work even though the respondent had his contact information. This supervisor then proceeded to provide the applicant with incorrect information related to his return to work.
In November 2012 the applicant asked for more overtime given he was getting less overtime than others. This request was denied.
4The applicant has filed grievances related to three of these allegations. He grieved the August 16, 2011 decision to give him a written warning for having made a testing error while working as a QC technician. He grieved the one day suspension for having left the plant for a coffee on December 7, 2011. The applicant grieved his layoff.
5The first two grievances were considered together and settled (without a formal settlement or release) following a third step meeting with the discipline being reduced from a written warning and a one day suspension to a written warning.
6The third grievance was withdrawn. The Union submits that it has a number of related grievances about how the seniority provisions of the Collective Agreement were applied during the layoff process in 2012. It decided to proceed with a lead grievance (not the applicant’s) that was subsequently dismissed by an arbitrator in a decision dated March 31, 2012. The Union submits that it subsequently decided to withdraw the applicant’s grievance in light of the arbitrator’s decision that the respondent’s layoff decision in relation to the lead case grievor did not violate the Collective Agreement. The applicant submits that his grievance was different from the lead case and that the Union should not have withdrawn it.
DELAY
7The Code requires an individual to act with all due diligence and file an application within one year of the last alleged incident of discrimination or the last of a “series of incidents” of alleged discrimination. Section 34 of the Code states:
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,
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.
8When assessing whether the allegations relate to a “series of incidents”, the Tribunal will generally consider the nature of the events and whether they may reasonably be viewed as a pattern of conduct or are comprised of incidents relating to discrete and separate issues without some connection or nexus. See, for example, Baisa v. Skills for Change, 2010 HRTO 1621. In Pakarian v. Chen, 2010 HRTO 457 the Tribunal defined the word “series” as “a number of things or events of the same class coming one after another in spatial or temporal succession”: In my view a “series of incidents” may be considered to exist where the incidents share a common theme, similar parties and/or circumstances.
9The applicant concedes that his allegations from 2000, 2002/2003 and 2007 as well as his undated allegations related to offensive materials being placed in his locker are untimely given their age and that he is not contending that they should continue to form part of the Application. Given the applicant’s position on these earlier incidents they are dismissed. The applicant submits that his allegations in relation to the November 2010 incident and the incidents arising from his QC technician position, primarily in August and September 2011, are timely pursuant to section 34(1)(b) in that they are part of a series of incidents that include his allegations dating from December 2011 and 2012 which occur within 12 months of the date of his Application (November 13, 2012).
10I find that the allegations related to incidents beginning in November 2010 are timely. I am satisfied that these do constitute a series of incidents primarily because they all involve allegations of discriminatory treatment by supervisory staff and repeatedly refer to the actions (or inactions) of one particular supervisor, Eric MacGillvray. I find that there is enough commonality in terms of theme (the treatment of the applicant by his supervisors) and similar parties (the involvement of Mr. MacGillvray) for all of these alleged events to be considered a series of incidents pursuant to section 34(1)(b).
SECTION 45.1/ABUSE OF PROCESS
11Section 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.
12Section 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.
13The respondent seeks dismissal of the applicant’s allegations that the applicant also grieved, namely the August 16, 2011 and December 7, 2012 discipline and the January, 2012 layoff on the basis that the grievance process is a proceeding that appropriately dealt with the substance of the applicant’s allegations pursuant to section 45.1 or, alternatively, because to proceed with these allegations would constitute an abuse of process.
14The applicant’s first grievance about being disciplined for having failed to conduct a proper product test on August 16, 2011, does not explicitly raise a human rights issue. The grievance rather claims that the discipline was unjust. It seeks as a resolution that the written warning be removed from the applicant’s file. An investigation report conducted pursuant to these grievance records that the applicant’s position was that there may have been a technical reason (a “scale fluctuation”) for why he failed to conduct a proper test.
15The applicant’s second grievance does more clearly raise a human rights claim when it states that the decision to discipline the applicant for having left the plant site to get a coffee is biased and unjust and that the respondent is harassing and discriminating against the applicant. The respondent contends that the applicant did raise the issue of being differentially treated but could not identify anyone else who had left the plant site with the knowledge of the respondent who had not been disciplined. This grievance also asks as a remedy that the applicant’s discipline (a one day suspension) be removed from his file.
16As noted earlier both grievances were settled with the applicant’s discipline being reduced to a written warning.
17The Tribunal has held that a workplace grievance-arbitration process meets the requirements of a “proceeding” for the purposes of section 45.1 of the Code. The Tribunal has also found that, for the purposes of section 45.1 of the Code, a “proceeding” need not involve a hearing, for example an arbitration hearing, and may involve a settlement. See Dunn v. Sault Ste. Marie (City), 2008 HRTO 149. I am, therefore, satisfied that the process that led to the settlement of the applicant’s first two grievances constitutes a proceeding within the meaning of section 45.1 of the Code. The issue of whether these grievances appropriately dealt with the substance of the allegations is more complicated.
18The onus falls on the party seeking to rely on section 45.1 to show that the other proceeding appropriately dealt with the subject matter of the Application. See Haykin v. Roth, 2009 HRTO 2017. In the present case I have limited information as to what happened during these grievance proceedings. There is no arbitrators’ decision in which findings of fact and law are made. The settlement of the grievance does not include written minutes of settlement. The parties dispute some of the underlying facts. The applicant contends that these grievances did not address human rights issues and consequently the applicant should have the opportunity to proceed with these allegations. There is an issue, in my view, about being able to draw clear conclusions about whether the applicant’s allegations were appropriately dealt with pursuant to section 45.1.
19However, I am of the view that this is a circumstance in which the doctrine of abuse of process clearly 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.
21In the present case the applicant’s two discipline grievances raise the same factual issues that form part of the Application. The grievances were settled. The settlement that was negotiated was in line with the terms the applicant was seeking namely a reduction in the discipline he had received. The applicant derived a benefit from this settlement. Notwithstanding this settlement the applicant now wants to put the same factual issues before the Tribunal arguing that the settlement does not sufficiently address his human rights concerns. In my view it would constitute an abuse of process for the applicant to come before the Tribunal to relitigate the decisions made by the respondent to discipline the applicant on August 16 and December 7, 2011. As the Tribunal states in Paterno v. Salvation Army, 2011 HRTO 2298 when addressing a similar issue:
The applicant had a choice. He could have foregone the benefits that he had as an employee under a collective agreement – including just cause protection, the grievance procedure and representation by union counsel – by not pursuing a grievance or arbitration. He then could have proceeded at the Tribunal with his human rights Applications without them being affected by the arbitrator’s determination. Having chosen to take the benefits of the collective agreement and the grievance process, however, an applicant must accept the consequences of that choice for a subsequent human rights proceeding, which is that the issues may be dealt with in the grievance and arbitration process that she or he has commenced. An applicant has a choice about where to proceed, but does not have the option to require an employer to litigate the same issues twice.
22The third grievance was that the applicant was laid off when other employees with less seniority were not. The Union withdrew this grievance following an arbitrator’s decision in relation to a grievance filed by another employee who had been laid off by the respondent.
23It is evident that the applicant’s union withdrew the applicant’s third grievance based on its determination that an arbitrator’s decision had fully resolved the issues raised by the applicant in his grievance. However, the result of this decision is that the applicant’s grievance was not subject to a proceeding. The applicant had no opportunity to put his case forward. The grievance did not proceed to arbitration, it did not settle. It was withdrawn based on the outcome of another proceeding. As such, I find that no “proceedings” have been completed which have dealt with the substance of the applicant’s allegations. Consequently, the respondents’ request for dismissal under section 45.1. and/or as an abuse of process is denied.
24That said, I would note that the applicant has not made it clear in his Application or at his preliminary hearing as to why he is of the view that his lay off was related to his sexual orientation. It appears his principal allegation is that his seniority rights under the Collective Agreement were not properly recognized, an issue the Tribunal will not be determining. The applicant will be required to adduce evidence to support an allegation that the decision to lay him off was related to his sexual orientation. The parties will also be allowed to rely on the findings of fact and law made by the arbitrator in her March 31, 2012 decision.
25In summary, the Application proceeds in relation to the applicant’s November 2010 allegation, the allegations related to the applicant’s QC technician position (except for the decision to discipline the applicant for his failed test), the allegations related to the applicant’s lay off in 2012 and to his overtime issues in 2012.
26A one day hearing will be scheduled
27I am not seized of this matter.
Dated at Toronto, this 18th day of October, 2013.
“Signed by”
Eric Whist
Vice-chair