Clarke v. Kingdom Hotel Toronto Ltd., 2013 HRTO 2002

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Raymond Clarke

Applicant

-and-

Kingdom Hotel Toronto Ltd. and United Food and Commercial Workers International Union, Local 333

Respondents

A N D B E T W E E N

Miluska Gleeson

Applicant

-and-

Kingdom Hotel Toronto Ltd. and United Food and Commercial Workers International Union, Local 333

Respondents

INTERIM DECISION

Adjudicator: David Muir

Date: December 3, 2013

Citation: 2013 HRTO 2002

Indexed as: Clarke v. Kingdom Hotel Toronto Ltd.

APPEARANCES

Raymond Clarke and Miluska Gleeson, Applicants

Doug Mcleod and Nicole Simes, Counsel

Kingdom Hotel Toronto Ltd., Respondent

Jeremy Hann, Counsel

United Food and Commercial Workers International Union, Local 333, Respondent

Laurie Kent, Counsel

1The applicants in this case were both long term employees of the respondent now known as the Kingdom Hotel Toronto Limited (the “Hotel”). They both appear to have been good employees. Despite their years of experience and apparently exemplary work record their employment with the Hotel was terminated in March 2012 when they were not successful in being transferred to the Hotel’s new location (the “new hotel”).

2In Case Assessment Directions issued to the parties on April 23, 2013 the Tribunal directed that a summary hearing be held to consider whether or not all or part of these Applications should be dismissed because they had no reasonable prospect of success or whether they should be dismissed pursuant to section 45.1 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) because the substance of them has been appropriately dealt with in another legal proceeding. In the same CADs two separate Applications were consolidated to be heard together. However they raise somewhat different issues as will be discussed in more detail below.

3A hearing was held on October 18, 2013 by telephone conference call. All parties participated by counsel. A recording related to some of the issues in dispute was reviewed prior to the hearing and was considered over the objection of the respondents for reasons with which I largely agree. In the end the contents of the audio recording of one of the other proceedings in issue in this case while considered did not assist in resolving the issues. At the conclusion of the hearing the applicants asked for leave to provide written submissions in reply. The request was granted.

4For the reasons that follow the Application of applicant Gleeson is dismissed. The Application of applicant Clarke is dismissed as against the United Food and Commercial Workers International Union, Local 333 (the “union”). Elements of this Application as it relates to the Hotel will proceed to the next stage of the Tribunal’s process.

BACKGROUND

5The applicants were both long term employees of the respondent hotel. Both were represented by the respondent union. The Hotel announced its intention to move locations at some point in 2011. A process for the transfer of some but not all of the Hotel’s employees to the new hotel were the subject of an agreement between the union and the Hotel.

6Both applicants believe that they experienced discrimination in their not being hired to work at the new hotel on the basis of age. Both applied for positions but were unsuccessful. The applicant Gleeson alleges that the selection criteria were unfairly applied. The applicant Clarke alleges in effect that his application was ignored. They further believe that the respondent hotel and union colluded to “gut” the seniority provisions of the collective agreement to facilitate the Hotel’s wish to screen out older workers for transfer to the new Hotel. Both applicants also believe that their place of origin and/or citizenship were additional factors in their not being successful in transferring to the new hotel.

7The applicant Gleeson grieved her termination and her case was dealt with in a transitional procedure negotiated between the Hotel and the Union and ratified by the membership of the union in October 2011. William Kaplan, an experienced labour arbitrator, conducted the review of the applicant’s grievance and found no evidence of discrimination.

8The applicant Clarke did not avail himself of the review procedure.

9Both applicants filed complaints at the Ontario Labour Relations Board (OLRB) alleging that the respondent Union violated its duty of duty of fair representation (DFR). Both were dismissed by the OLRB pursuant to its rules because the applicants had failed to set out a prima facie case in their pleadings.

The Review Process

10The fact that the respondent Hotel had been intending to move locations had been known for some time but was not formally announced until 2011 and was intended to be effective in March 2012. In January 2011 the union and the respondent employer began negotiating a renewal collective agreement. It is important to note the bargaining rights held by the union were site specific and accordingly the union would have no bargaining rights at the new hotel. This fact was key to the adjudication of the complaints before the OLRB.

11The union and hotel entered into a Memorandum of Agreement for a new collective agreement which included enhanced severance for employees who sought to be transferred but were not hired at the new hotel. It also included a dispute resolution mechanism for disputes with respect to the transfer of new employees to the new hotel.

12The dispute resolution provision of the transitional agreement included the following provisions:

In the event that the employee is not successful in the job posting procedure, the following procedure will be in place to review and understand how the selection was made:

The employee can submit a notice to Human Resources within 7 days of being notified that they have not been successful in the job posting;

Once the Hotel has completed the job posting process and all employees have been notified whether they have been successful, the Hotel and Union will meet to confirm the list of employees who have requested a review of the selection process:

The Hotel and Union will agree on the selection of an independent person to act as a Reviewer of all notices filed by employees;

The Reviewer will have authority to understand the process and criteria used for the job selection of the individual and ensure that the criteria used by the Hotel was applied equally as against the person posting (or that position;

The employee can make any written submissions to the Reviewer as part of this process. Such submissions will be made through the Union;

The Reviewer will provide a written report of the findings within seven days from being retained.

The decision of the Reviewer shall be binding on the Parties for all purposes under the Collective Agreement and statute

13There is no dispute that the seniority provisions of the collective agreement were significantly watered down in the transition agreement. Whether or not they were gutted as characterized by the applicants, at the end of the day seniority was only relevant in the event that there were more qualified candidates than existing positions. The respondent employer, it was said, wanted not just good and experienced employees it wanted the best employees. As many as 200 employees of the Hotel were not transferred to the new hotel. This represented a significant percentage of the former workforce. It is not clear how many employees sought to be transferred and were unsuccessful but only three grieved the refusal of the new hotel to hire them at the new hotel.

14As indicated the applicant Gleeson did grieve the fact that she was not transferred to the new hotel. The applicant Clarke did not.

15Both applicants filed applications to the OLRB alleging that the respondent union had failed in its obligation to fairly represent them in their employment relations. Section 77 of the Ontario Labour Relations Act requires that trade unions under the OLRA represent their members in a manner that is not arbitrary, discriminatory or in bad faith.

16As indicated the DFR applications were both dismissed on the basis that the applicants had failed to plead a prima facie case.

17The respondents argue that these Applications should be dismissed pursuant to section 45.1 of the Code because all of the issues raised in the Application were dealt with in these other legal proceedings and to the extent that an issue might not have been squarely raised, could have been and should have been raised in either or both of the review hearing or in the proceedings at the OLRB.

THE LAW

18Section 45.1 of the Code provides that the Tribunal may dismiss an application in whole or in part where in its opinion the substance of the application has been appropriately dealt with in another proceeding.

19The legal principles surrounding the application of section 45.1 in the context here are well established in the Tribunal’s jurisprudence. The section which, in my view, encompasses aspects of the common law doctrines of res judicata, issue estoppel, collateral attack and abuse of process amongst others was intended to prevent re-litigation of issues that have been adjudicated in another legal proceeding. The Tribunal’s approach to the exercise of its discretion under the section was clarified and confirmed by the Supreme Court of Canada in Figliola v. British Columbia (Workers Compensation Board), 2011 SCC 52. See also Gomez v. Sobeys Milton Retail Support Centre, 2011 HRTO 2297. The parties argued this case on the basis that the principles articulated in Figliola, above, remain the relevant law in this context.

20In applying s. 45.1 the Tribunal has articulated a two part test in considering the application of the section. See Campbell v. Toronto District School Board, 2008 HRTO 62. Firstly has there been another proceeding within the meaning of the section. If the issues in dispute before this Tribunal were raised in another proceeding then the question becomes whether or not the substance of the Application has been appropriately dealt with.

21There is no dispute in this case that the proceedings in these cases, applications before the OLRB and a review by an arbitrator under a collective agreement, are proceedings within the meaning of the section. The applicants take issue with the second part of the analysis – was the substance of the Application appropriately dealt with in the other proceeding? This inquiry requires a consideration of the nature of the issues in dispute and the jurisdiction of the adjudicative entity to deal with them.

22In Paterno v. Salvation Army, 2011 HRTO 2298 the Tribunal explained the purposes of the section:

This Tribunal has emphasized throughout its jurisprudence on s.45.1 that in applying the section, the analysis should not be technical, but should focus on the goals of preventing relitigation of the substance of issues decided elsewhere. Where the result of the other proceeding disposes, in essence, of the issues before this Tribunal, the Application must be dismissed. For example, in Campbell v. Toronto District School Board, 2008 HRTO 62, the Tribunal found that the analysis applied by the special Education Tribunal in an appeal under the Education Act, R.S.O. 1990, c. E.2, as amended, appropriately dealt with issues under the Code, because the essence of the analysis was the same even if the Code was not directly applied. In Qui v. Neilson, 2009 HRTO 2187, the Tribunal found that where the factual findings made in another proceeding preclude a finding of discrimination, an Application must be dismissed even if the other proceeding did not specifically apply the Code. In Dunn v. Sault Ste. Marie (City), 2008 HRTO 149, the Tribunal found that where a party settled a previous proceeding that included the essence of the human rights matter, the Application should be dismissed under s. 45.1. In Cunningham v. CUPE 4400, 2011 HRTO 658, a complainant who narrowed the allegations in the previous proceeding to exclude human rights issues was precluded from later pursuing the human rights issues at the Tribunal. If there is a legal or factual finding in a previous proceeding, whether explicit or implicit, that makes it impossible for an application or part of an application to succeed, the application or part must be dismissed.

ANALYSIS

The Effect of the Review Decision

23Having considered the parties’ submissions and applying the legal principles articulated above I find that the Gleeson Application as it relates to the Hotel must be dismissed because in my view the substance of the Application has been adjudicated in the review proceeding.

24The respondents both argued that the issues raised in these cases have largely been determined by the Tribunal in its decision 2013 HRTO 1225 involving another one of the three grievors who participated in the review process and received a decision she did not agree with. In that case the Tribunal concluded that s. 45.1 should be applied to dismiss an Application indistinguishable on the facts material to the s. 45.1 issued from this case.

25A hearing of applicant Gleeson’s grievance was held before the reviewer in May 2012. It can fairly be described as an expedited process. The applicant was represented by counsel provided by the union and clearly raised her claim that she was discriminated against on the basis of age and her nationality. The applicant was given an opportunity to present her case and the respondent Hotel called a witness.

26In a written decision the reviewer concluded as follows:

In this case, together with its partner, The Dinex Group, the new hotel developed a knowledge test. That test was given to everyone who applied for a food and beverage position, There was also an overall assessment that set a minimum threshold. There is no allegation that either the test or the overall assessment, including the minimum threshold, was unreasonable, or that either was improperly or unfairly graded.

Unfortunately, none of the grievors was successful in meeting that threshold. There was no fetter on the employer's discretion to set a test or to establish a minimum threshold for consideration; provided that the process in doing so was reasonable, In this case I must conclude that it was.

Moreover I also conclude that the criteria used by the hotel was equally applied. There is no evidence of discrimination on the basis of age, nationality or disability. The evidence merely indicates an extremely unfortunate outcome for long-service employees. This is not a basis for arbitral interference especially given the extremely limited scope of arbitral review. Accordingly and for the fore-going reason all of the grievances are dismissed.

27In response to the argument that the s. 45.1 issue has already been determined in 2013 HRTO 818, (reconsideration denied 2013 HRTO 1225) the applicant argues that I am not bound by other Decisions of the Tribunal and must decide the case before me based on the facts and the applicable law. I agree with the applicant that I am not strictly bound to follow a prior Tribunal Decision even where it appears to be four square with the case before me. However it is also an important value in any adjudicative context that like cases are decided alike. To depart from a determination made in an apparently indistinguishable case it is incumbent on me to articulate compelling reasons to disagree with the prior decision.

28I have reviewed the Tribunal’s decision in 2013 HRTO 818 and it cannot be distinguished in any principled way from this Application as it relates to the Hotel. Moreover I agree with the analysis of the facts and the law in the Decision and adopt the reasons given in that Decision with the following additional comments.

29In this case the applicants argue that the review process before the reviewer did not appropriately deal with the substance of the Application because the hearing’s procedure was insufficient to provide evidence about and properly assess the Code claims. The applicant Gleeson asserts that she was not told what information she would have to present at the hearing. She was not shown the documents she should provide to the reviewer in advance of the hearing and was not provided with the documents which would be relied on by the hotel in advance of the hearing. She was not permitted to have a third party present to take notes although she apparently was provided notes by someone. Her evidence was not sworn and there was no cross examination of any witnesses. Her evidence lasted 2.5 minutes she states - as she read a brief statement, essentially the narrative of her Application to the Tribunal as paraphrased above. The Hotel’s witness testified for 15 minutes and was asked leading questions. The applicant Gleeson also asserted in her Application that the reviewer did not have the authority to consider the human rights issues she was raising.

30The applicant Gleeson argues that the decision itself does not appropriately deal with the substance of her Application. The decision provides a conclusion that no discrimination took place without providing an analysis for this finding. The evidence of the Hotel’s witness was accepted without any discussion of the evidence of the applicant. They gave conflicting testimony and the reviewer did not make any observations as to either witness’ credibility.

31The applicant Gleeson relies on the Tribunal’s decision in Prelogar v. Fine Line Imports Inc., 2011 HRTO 1458, to support her claim section 45.1 ought not be applied where the other proceeding appears to be significantly deficient and where it is unclear from the reasons given that there was a coherent consideration of the Code issues. The applicant argues that in such circumstances it cannot be said that the same issues were decided because the applicant did not have a real opportunity to present her human rights claim before Mr. Kaplan and he did not appropriately deal with the basis of her claim.

32I do not agree. I observe that the Prelogar decision relied on by the applicant was made before the release of the decision of the Supreme Court in Figliola above. The applicant did not argue that Figliola is not still the state of the law when considering these issues in the context here and I find that it remains applicable to cases where a party pursues a substantially similar claim in a grievance procedure under a collective agreement. I appreciate that the process utilized by the reviewer was different than might have been followed in other circumstances however I would also observe that the process adopted was more fulsome than is utilized in the summary hearing process of the Tribunal.

33In any event it is not my role to parse the process utilized in the other proceeding and determine whether the review of the evidence was adequate or that the appropriate legal analysis was undertaken. It is enough that the applicant Gleeson knew what case she had to advance in the other proceeding and was given an opportunity to present that case before an independent decision maker with authority to consider the Code in its decision making. The applicant knew what the case was and she had the opportunity to present it – she articulated the same allegations as are made in this Application and advanced precisely the same human rights claims as are advanced here. Knowing the case you have to meet is not the same as marshalling the evidence necessary to make the case. Mr. Kaplan considered the evidence presented to him which was from the Hotel, largely the evidence of the process and testing of the applicant’s general knowledge and skills in relation to the duties of her position. The reviewer determined that there was no evidence of discrimination in the application of the selection criteria. He also concluded that there was no evidence of discrimination in relation to the applicant’s age and nationality. His decision according to the terms of the Transitional agreement was final and binding.

34The applicant Gleeson’s claim that the reviewer had no authority to consider the human rights issues is not correct. As a matter of law the reviewer was required to consider the Code in his deliberations. See Parry Sound (District) Social Services Administration Board v. OPSEU, Local 324, 2003 SCC 42 and Tranchemontagne v. Ontario (Disability Support Program), 2006 SCC 513.

35The proceeding the applicant Gleeson engaged was provided for in an agreement between the workplace parties and ratified by the membership of the union. Most importantly is the fact that the applicant had a choice to make when she felt aggrieved by the Hotel’s decision not to re-hire her. The applicant could have, rather than engage the review process, file an Application with the Tribunal. Having chosen to pursue another proceeding the applicant must accept the final and binding results of that choice.

36In my view there is no merit to the applicant Gleeson’s claim that the substance of her Application as it relates to the respondent Hotel was not appropriately dealt with and accordingly the Gleeson Application as against the Hotel should be dismissed.

37As regards to the argument that the review decision determines certain of the issues raised in the Clarke Application, I do not agree. He was not a party to that proceeding and while the reviewer did find that the selection criteria were not discriminatory I do not understand how that conclusion can be binding on Clarke as opposed to the union or perhaps the applicant Gleeson.

The Effect of the DFR Proceedings

38Both applicants filed applications at the OLRB alleging that the respondent union had failed to represent them fairly in their relations with their employer.

39Much of the applicants’ submissions at the hearing related to the merits of their Applications and the applicants’ central contention that the union colluded with the employer or at a minimum facilitated discriminatory screening of the applicants and others by their agreeing to substantially reduced protection of seniority rights. Although the applicant Gleeson alleges that the screening criteria were discriminatory there is no suggestion that the union actively participated in their creation, but rather that they did not object to them.

40Although there were few particulars to support the central allegation in the Applications the applicants each raised a number of allegations to support their theory in the DFR proceedings. These allegations were all before the OLRB and considered by them in addressing the central issue. In my view this central allegation of the applicants in these cases is essentially the same issue raised in the two DFR complaints.

41The applicant Clarke also alleges that when asked to file a grievance in December 2012 the union refused to do so claiming that it was too late to do so. The applicant Clarke’s response to the delay issue is that he left messages with a union official in March 2012 which were not returned.

42The applicants argue that their Applications as against the Union was not dealt with in the OLRB proceeding. It was argued that the claim in the DFR was not that their rights under the Code had been violated but that the respondent union had failed in its obligation to represent them fairly. The applicants argued that discrimination in section 74 of the OLRA is not the same as discrimination in the Code.

43I do not agree. Section 74 of the OLRA requires that a union represent its membership fairly and without discrimination – the language of the sections prohibits representation that is arbitrary, discriminatory or in bad faith. This evidently includes Code discrimination, indeed protection against racial discrimination by trade unions is one of the reasons the provision was first enacted. It may be broader in its scope than the protection of the Code in that it is not confined to the grounds in the Code however there is no doubt that the section includes and contemplates discrimination as understood in the Code. The applicants could both have alleged before the OLRB that their rights to be free of discrimination on the basis of any of the prohibited grounds in the Code had been infringed by the respondent union.

44To the extent that the issues before the OLRB were framed somewhat differently than they have been in these Applications, this does not assist the applicants. The Tribunal has held on numerous occasions that an applicant will not be able to avoid the consequences of their choice of forum by reframing the legal argument or subdividing their case. Where the factual circumstances at issue are essentially the same and the applicant could have raised the issue in the same way in the other proceeding and chose not to for whatever reason s. 45.1 will be found to apply. See for example Paterno v. Salvation Army, 2011 HRTO 2298 and Cunningham v. CUPE 2200, 2011 HRTO 658.

45There is no dispute that a proceeding before the OLRB is a proceeding within the meaning of section 45.1. The applicants’ primary argument is that the issues raised were not appropriately dealt with at the OLRB. The applicant Gleeson argues that the OLRB relied on the decision of the reviewer and accordingly its decision is tainted by the failings of that procedure. The applicants also both argue that their issues were not appropriately dealt with because there was no oral hearing.

46As indicated earlier it is not my role to parse the process used or to engage in a substantive review of the decision from the other proceeding. It is enough that the applicant knew the case they were required to advance in the other proceeding and were given an opportunity to present that case before an independent decision maker with authority to consider the Code. The applicants’ argument that because there was no oral hearing section 45.1 does not apply is without merit. An oral hearing is a not a pre-requisite to the application of s. 45.1. See Qiu v. Neilson, 2009 HRTO 2187 for the general proposition that there are no specific procedural pre-requisites that must be present before 45.1 can be found to apply.

47As previously noted the applicants had a choice of forum to raise their issues. In these circumstances s.45.1 requires that an applicant accept the consequences of the choice they have made. The applicants chose to proceed first to file a DFR raising essentially the same issues as they seek to bring to the Tribunal. The applicants made written submissions to the OLRB attempting to explain how their allegations established a prima facie case that the DFR had been violated by the respondent union. The OLRB dismissed their claims pursuant to its rules on the basis that the pleadings did not disclose a prima facie case. It would be unfair to allow the applicant to re-litigate these issues at the Tribunal.

48For these reasons the Applications as they relate to the respondent union are dismissed. I also find, as the OLRB did, that in all of the circumstances there is no evidentiary basis to the applicant’s contention that the failure of the respondent union to secure seniority rights in the transition was discriminatory and would dismiss this aspect of the Applications as having no reasonable prospect of success. Similarly the other allegations of the applicant Clarke, that the union failed to provide him with timely advice and refused to file a grievance on his behalf, were issues that were before the OLRB and determined there. I would also have found that there is no indication that these failures, if that is what they were, were informed by any of the discriminatory grounds plead by the applicant. However having dismissed it pursuant to Rule 45.1 of the Code there is no need to elaborate my conclusions on this point.

49The Hotel argues at the hearing that the entire substance of the Clarke Application was adjudicated in the DFR. It is not clear that this is the case. The applicant Clarke argues that the decision of the OLRB is only tangentially related to the issues raised in respect of the Hotel.

50I have reviewed the DFR application of the applicant Clarke and the decision of the OLRB and it is clear that the issue of the selection criteria was not raised by the applicant or adjudicated by the OLRB. However I also note that this is not an allegation that the applicant has made in this Application. The central allegation of the applicant as it relates to the Hotel is that he applied for a position with the new hotel but was not hired. He also alleges that he was not offered the test and believes that he was screened out because of his age, place of origin, ethnic origin and citizenship. I appreciate that the Hotel has claimed that the applicant in fact took the test and did not meet the standard but this fact is disputed. Accordingly it is not clear whether or not the selection criteria are an issue in this Application.

51In any case while the Hotel was a party to the DFR proceeding the substance of the DFR related primarily to the conduct of the union and the alleged collusion with the employer to gut the seniority provisions and did not address the entirety of this Application. It does not appear to address the selection criteria or the application to the applicant, nor is it clear why this would have been an issue in the case. It is also not entirely clear from the reasons of the reviewer whether any of the grievorstook issue with the selection criteria as such although it appears that they did not, however the applicant Clarke was not a party to that proceeding and it is therefore not clear why any conclusion the reviewer arrived at on that point would be binding on the applicant. Accordingly the Application as it relates to the Hotel should proceed to the next step of the Tribunal process.

52Rule 19A of the Tribunal’s Rules provides that where a Request for Summary Hearing is denied the Tribunal need not provide reasons for the denial. In my view that is the appropriate approach with respect to the remaining issues in the Clarke Application. As both parties have agreed, the Tribunal will schedule a half day mediation in due course.

CONCLUSION

53For the reasons set out above both of these Applications as against the union are dismissed. The Gleeson Application as it relates to the Hotel is also dismissed for the reasons set out above. The Clarke Application as it relates to the Hotel will proceed to mediation.

54I am not seized.