Lee Thompson v. Liquor Control Board of Ontario and the Ontario Public Service Employees Union, 2013 HRTO 1847

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Lee Thompson

Applicant

-and-

Liquor Control Board of Ontario and the Ontario Public Service Employees Union

Respondents

DECISION

Adjudicator: Jo-Anne Pickel

Date: November 4, 2013

Citation: 2013 HRTO 1847

Indexed as: Thompson v. Liquor Control Board of Ontario

APPEARANCES

Lee Thompson, Applicant

Self-represented

Liquor Control Board of Ontario, Respondent

Justin Diggle, Counsel

Ontario Public Service Employees Union, Respondent

Richard Blair, Counsel

Introduction

1The Application alleged discrimination in employment because of race, colour, ancestry, disability, and family status as well as reprisal contrary to the Human Rights Code, R.S.O. c. H. 19, as amended (the “Code”). Specifically, the applicant alleged that the Liquor Control Board of Ontario (“LCBO”) discriminated and reprised against him by denying him a transfer.

2In addition to filing an Application with the Tribunal, the applicant challenged the denied transfer by filing grievances with his union, the Ontario Public Service Employees Union (“union”). The grievances proceeded to arbitration before Vice Chair Richard Brown of the Grievance Settlement Board (“GSB”). The Application was deferred pending the outcome of the arbitration. Vice Chair Brown dismissed the grievances by decision dated October 10, 2012.

3This Decision addresses whether the Application should be reactivated. It also addresses whether, if the Application is reactivated, it should be dismissed under s. 45.1 of the Code and/or as an abuse of process and/or because it stands no reasonable prospect of success.

4The Tribunal held a teleconference hearing to hear oral submissions on these issues on October 22, 2013.

5Having considered the parties’ submissions and the applicable case law, I find that, even if the applicant were permitted to reactivate his Application, it must be dismissed for the reasons set out below.

Background

6The applicant is an employee of the LCBO. He requested a transfer to an LCBO location in Brampton. The LCBO denied his request. The applicant alleged that, by denying his transfer request, the LCBO failed to accommodate a groin injury that made it difficult for him to drive. He also claimed that, by denying his request, the LCBO discriminated against him because of family status due to his responsibility to care for his parents and daughter. The applicant, who self-identifies as black, claimed racial discrimination because the LCBO had allegedly granted transfers to white employees in similar circumstances. Finally, the applicant alleged that the LCBO denied his request as a reprisal due to grievances, human rights applications and other complaints he had made against the LCBO in the past.

7As noted above, in addition to filing his Application with the Tribunal, the applicant filed two grievances with his union. Both grievances refer to a violation of the non-discrimination clause in the collective agreement and applicable legislation including the Code. By Interim Decision, 2011 HRTO 1237, dated June 28, 2011, the Tribunal found that the applicant’s grievances dealt with the same facts and issues raised in his Application.

8As the Tribunal stated at para. 16:

Grievance #1 states that the applicant has not been accommodated under the Collective Agreement and asks as a settlement that the applicant be transferred to Brampton. The grievance’s central contention is that the corporate respondent’s refusal to transfer the applicant to a store closer to home, as requested, is discriminatory. Grievance #2 states that the corporate respondent has not accommodated the applicant because of his disability and that this failure constitutes discrimination. Grievance #2 indicates a request for accommodation following the duration of the applicant’s travelling period. I am satisfied that this grievance clearly relates to the underlying facts and issues raised in the “Transfer Allegation” [set out in the amended Application]. It is also related, in some measure, to the allegations contained in the Application that the applicant has had a number of medical conditions that have affected his ability to commute to work and that the corporate respondent has not accommodated him by allowing him to transfer to a different work location.

9As a result, the Tribunal deferred consideration of the Application pending the outcome of the grievance process.

The Arbitration Proceeding

10The applicant’s two grievances as well as a third grievance filed by the applicant proceeded to arbitration before Vice-chair Richard Brown of the Grievance Settlement board (“GSB”). After five days of testimony by the applicant, the LCBO brought a non-suit motion seeking dismissal of the grievances. By decision dated October 10, 2013, Vice-chair Brown granted the LCBO’s motion and dismissed the grievances.

11The Vice-chair summarized the substance of the grievances as presented by the union in paragraph 2 of his decision. As noted by the Vice-chair, the union claimed that the applicant was entitled to be transferred to Brampton as an accommodation for his disability and family status. The union also submitted that the applicant was entitled to relief from Saturday work due to his family status. Finally, the union claimed that the LCBO denied the applicant’s transfer requests as a reprisal for his actions in filing other grievances and complaints in the past.

12At the conclusion of the union’s evidence, the LCBO brought a motion for non-suit arguing that there was insufficient evidence to make out a prima facie case of discrimination and/or reprisal. In relation to the claim of disability discrimination, the Vice-chair held that there was insufficient evidence that the applicant was discriminated against based on the length of his commute to the LCBO store to which he had been assigned. In particular, the Vice-chair noted that, in his testimony, the applicant refused to provide his current address which would have allowed the Vice-chair to determine the length of his commute to work.

13With respect to the claim of family status discrimination, the Vice-chair held that there was insufficient evidence to establish a prima facie case of discrimination on this ground. In particular, the Vice-chair noted that there was insufficient evidence to support the union’s contention that the denial of a transfer to Brampton seriously interfered with the applicant’s ability to care for his parents and/or daughter. In his decision, the Vice-chair relied upon the applicant’s refusal to answer pertinent questions as one reason why there was insufficient evidence to make out a prima facie case of discrimination.

14On the issue of reprisal, the arbitrator held that there was insufficient evidence to prove that the applicant was denied a transfer as a reprisal for previous complaints and grievances. The Vice-chair reviewed the evidence admitted at the hearing relating to the union’s claim that the applicant had been treated differently because six other employees had been granted transfers. However, the Vice-chair held that the circumstances of these other employees were not comparable to the applicant’s circumstances. For this reason, he held that there was insufficient evidence to establish that the LCBO denied the applicant’s transfer request as a reprisal.

15For all these reasons, the Vice-chair granted the LCBO’s non-suit motion and dismissed the grievances on the basis that there was insufficient evidence relating to reprisal or discrimination because of disability or family status.

The Tribunal Process

16By letter dated April 24, 2013, the Tribunal requested that the applicant provide an update on the status of the grievance proceeding by May 24, 2013. By e-mail dated May 22, 2013, the applicant advised the Tribunal that the arbitration had ended.

17By e-mail dated May 31, 2013, the Tribunal asked the applicant to confirm whether he was withdrawing the Application or whether he intended to request that it be reactivated. On the same date, the applicant advised by e-mail that he did not wish to withdraw the Application. The applicant filed a Request to reactivate the Application on June 12, 2013. As reasons for his request, he stated that the union had “acted poorly and in bad faith”, that the LCBO had acted in bad faith and “the judge (sic) erred”.

The Parties’ Submissions

18The LCBO submitted that the applicant should not be permitted to reactivate his Application due to his failure to request a reactivation within the 60 day timeframe required by the Tribunal’s Rules of Procedure (“Rules”). The LCBO also submitted that the Application should be dismissed as against it because the arbitration had appropriately dealt with the substance of the Application. The LCBO argued that the facts and issues raised in the Application and grievances were the same. It noted that the applicant was represented by the union in the arbitration. The grievances were the subject of multiple days of evidence and they were ultimately dismissed. As such, the LCBO argued that the GSB arbitration proceeding appropriately dealt with the substance of the Application and the Application must be dismissed.

19The union submitted that the applicant’s allegations against the union should be dismissed on the basis that they stand no reasonable prospect of success. The union argued that the applicant appeared to be dissatisfied with the representation he received from the union. However, he failed to point to any evidence that would support a claim that any of the union’s actions or inactions would amount to discrimination or reprisal under the Code.

20The applicant argued that the Application should not be dismissed. When asked why he believed that the arbitration proceeding had not appropriately dealt with the substance of his Application, he argued that the LCBO treated him differently because of his race. He claimed that the LCBO permitted transfers by white people while denying transfers to black employees. He also argued that he was not permitted to fully explain himself in the arbitral proceeding and that the Vice-chair was biased against him. As for his Application against the union, the applicant submitted that the union was aware of the transfers of white employees and was in essence complicit with the LCBO with respect to these transfers. As for the delay in filing his Request to reactivate his Application, the applicant argued that his Request was timely as it was filed within 60 days of the Tribunal’s letter seeking an update on the status of the arbitration proceeding.

Analysis

21I find that the applicant’s request to reactivate should be dismissed for delay as it was filed well after the 60 day time limit set out in Rule 14 of the Tribunal’s Rules and he has provided no good faith reason for the delay. It is clear from the Rules that this time limit is calculated from the date of the conclusion of the parallel proceeding.

22While the applicant’s Request to reactivate could be dismissed on this basis alone. I find it appropriate to address the other issues addressed in the teleconference due to the comprehensive submissions made by the respondents in this case. For the reasons set out below, even if I were to grant the applicant’s Request to reactivate his Application despite his eight month delay in filing it, I find that his Application must be dismissed for the reasons set out below.

Application Against LCBO

23Section 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.

24It is well established that the grievance and arbitration process is a “proceeding” for the purposes of section 45.1 of the Code. See for example: Paterno v. Salvation Army, 2011 HRTO 2298 at para. 22. The key question in this case is whether the arbitration proceeding appropriately dealt with the substance of the Application.

25In British Columbia (Worker’s Compensation Board) v. Figliola, 2011 SCC 52, [2011] 3 S.C.R. 422, the Supreme Court of Canada considered a provision similar to s. 45.1 in British Columbia’s Human Rights Code, R.S.B.C. 1996, c. 210. The Court held that the provision is the statutory reflection of the collective principles underlying the doctrines of issue estoppel, collateral attack and abuse of process. Provisions such as s. 45.1 of the Code deliver to the litigation process principles of finality, the avoidance of multiplicity of proceedings, and protection for the integrity of the administration of justice, all in the name of fairness.

26In assessing whether the substance of a complaint has been dealt with in another proceeding the Court stated at para. 37 of Figliola that a tribunal should ask itself the following questions:

Relying on these underlying principles leads to the Tribunal asking itself whether there was concurrent jurisdiction to decide human rights issues; whether the previously decided legal issue was essentially the same as what is being complained of to the Tribunal; and whether there was an opportunity for the complainants or their privies to know the case to be met and have the chance to meet it, regardless of how closely the previous process procedurally mirrored the one the Tribunal prefers or uses itself. All of these questions go to determining whether the substance of a complaint has been “appropriately dealt with”. At the end of the day, it is really a question of whether it makes sense to expend public and private resources on the relitigation of what is essentially the same dispute.

27The Supreme Court also made clear that a human rights tribunal’s task under a provision such as s. 45.1 is not to sit in appeal or judicial review of another tribunal’s decision.

28None of the reasons provided by the applicant as to why the arbitration did not appropriately deal with the substance of the Application can be accepted. In the hearing, the applicant essentially repeated the claims set out in his Request to reactivate that the GSB erred in its decision and that the union and LCBO acted in bad faith.

29There is no dispute that Vice-chair Brown had the jurisdiction to decide the applicant’s human rights claims. I agree with the reasoning in the Tribunal’s Interim Decision in this matter that the applicant’s grievances raised the same facts and issues as his Application. I also find that the applicant, and the union acting on his behalf, knew the case to be met and had the opportunity to meet it. At the end of the day, the Vice-chair held that union had not advanced sufficient evidence to make out a prima facie case of discrimination or reprisal.

30The applicant provided no information to support his claim that the Vice-chair was biased against him. Nor did he provide any information to support his claim that he did not have a fair chance to present his case before the Vice-chair. In fact, it appears from the decision that the applicant himself refused to answer relevant questions which contributed to the dismissal of the grievances due to insufficient evidence. In any event, as the Supreme Court noted in Figliola, it is not the Tribunal’s jurisdiction to sit in appeal or judicial review of another tribunal’s decision. The Tribunal’s jurisdiction in this case is to determine whether the arbitration proceeding dealt with the substance of the Application. For the reasons set out above, I find that it did.

31I note that the issue of discrimination because of race appears not to have been argued, or at any rate, it was not expressly dealt with by the Vice-chair. Although the Vice-chair reviewed evidence relating to the applicant’s claim that he had been treated differently from other employees in similar circumstances, he did not make a specific finding with respect to the applicant’s claim of racial discrimination. The Vice-chair reviewed the applicant’s evidence in relation to the transfers of other employees in his analysis of whether there was sufficient evidence to prove reprisal. He found that the circumstances of the other employees referred to by the applicant were not in fact similar to the applicant’s circumstances. Therefore, the Vice-chair found there was insufficient evidence to support the claim that the LCBO had denied the applicant a transfer as a reprisal.

32If the applicant believed that the transfers of these other employees were also evidence of racial discrimination, it was incumbent on him to advance this further argument before the Vice-chair. A party is normally expected to bring their entire case forward and not split it up into several pieces, adding to the cost and uncertainties associated with duplicative litigation. See Cunningham v. CUPE 4400, 2011 HRTO 658 at para. 58. In Blanchette v. Ontario (Natural Resources), 2010 HRTO 2280, the Tribunal found it would be an abuse of the Tribunal’s processes to hear an application where the applicant had filed a grievance about the same facts which resulted in a decision by the GSB. In that case, the applicant had not argued a Code violation before the GSB, only a violation of the collective agreement. Nevertheless, the Tribunal stated that “it is an abuse of process to compartmentalize that complaint into several different processes, and to await the outcome of each proceeding before continuing on with the next.”

33This reasoning is even more applicable to this case as the applicant and/or the union on his behalf did advance certain Code-based claims but did not advance the claim of racial discrimination. To permit the applicant to now raise this allegation with respect to the LCBO’s refusal of his transfer request would be an abuse of process. It would require the Tribunal to re-hear much of the evidence that was already called at the arbitration. As such, it would amount to unnecessary re-litigation of the applicant’s discrimination claim.

34For the reasons set out above, the Application against the LCBO is dismissed under s. 45.1 of the Code and/or due to the application of the doctrine of abuse of process.

Application Against Union

35In his Application, the applicant claims that the union discriminated or reprised against him by failing to appropriately represent him and being complicit in the employer’s discrimination.

36The Tribunal has held that it does not have jurisdiction over whether a union has adequately represented a member. See, for example, Brown v. Kensington Garden, 2012 HRTO 1511 at paragraph 11. The Tribunal has consistently held that even a union’s failure to act on behalf of a member does not by itself amount to a breach of the Code, absent some factual basis to establish discrimination or reprisal.

37In the circumstances of this case, the union did act on the applicant’s behalf. It referred his grievances to arbitration and represented the applicant throughout the arbitration proceeding. The applicant has pointed to no evidence that the union treated him differently in the representation it provided to him. At the hearing, the applicant made vague assertions that the union was aware of other transfers of white employees. He appeared to suggest that this was evidence of bad faith on the union’s part. However, his assertions in this regard were nothing but bald assertions unsupported by any supporting particulars. Similarly, his claim that the union was “complicit” with the employer was nothing but speculation of impropriety without any supporting facts or any information which would support a nexus to the Code.

38For these reasons, I find that the applicant’s Application against the union must be dismissed on the basis that it stands no reasonable prospect of success.

Order

39For the reasons set out above, this Application is dismissed.