Hillier v. Benteler Automotive Canada Corporation, 2013 HRTO 655

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Frances Hillier

Applicant

-and-

Benteler Automotive Canada Corporation, Doreen Henschel,

Michelle Coulter and Bill Maurais

Respondents

DECISION

Adjudicator: Jo-Anne Pickel

Date: April 18, 2013

Citation: 2013 HRTO 655

Indexed as: Hillier v. Benteler Automotive Canada Corporation

APPREARANCES

Frances Suzette Hillier, Applicant

Terry Hillier, Representative

Benteler Automotive Canada Corporation, Doreen Henschell, Michelle Coulter and Bill Maurais, Respondent

Jessica Young, Counsel

Introduction

1This decision deals with the issue of whether this Application should be dismissed under s. 45.1 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) on the basis that another proceeding has appropriately dealt with the substance of the Application.

2For the reasons that follow, I find that the Application should be dismissed under s. 45.1 of the Code.

factual background

3The applicant filed an Application on April 27, 2009 in which she alleged that the respondents discriminated against her because of disability and reprised against her contrary to the Code. Specifically, the applicant claimed that the respondent Ms. Henschel made an allegedly discriminatory comment relating to her disability by saying “use it or lose it” in reference to her injured arm. She also alleged that Ms. Henschel openly discussed her injuries in front of co-workers and also improperly filled out an injury reporting form to report her injury to the Workplace Safety and Insurance Board (“WSIB”). In addition, the applicant alleged that the respondents took various actions to reprise against her contrary to the Code. The applicant’s reprisal allegations relate to the fact that the respondents assigned her to hang certain cables (ABS cables) even though they were allegedly aware that this would aggravate her shoulder and neck injuries.

4The applicant filed a grievance dated November 19, 2008 relating to Ms. Henschel’s allegedly discriminatory comment (grievance 08-226). The corporate respondent denied the grievance at the final step of the grievance procedure. It stated that, after conducting a full investigation, it decided that Ms. Henschel’s comment was inappropriate but did not amount to harassment or discrimination. The corporate respondent recommended that Ms. Henschel and Ms. Hillier meet and that Ms. Henschel formally apologize to Ms. Hillier. By letter dated March 31, 2009, the applicant’s union, the Canadian Auto Workers, Local 1285 (“union”), advised the corporate respondent that the apology was appropriate and that the grievance was settled.

5The applicant also filed seven subsequent grievances in March 2009, July 2009 and December 2010 respectively. The content of the grievances overlap. In essence, they allege that the respondent breached the collective agreement by making her hang ABS cables, by failing to file a form to report her workplace injury to the WSIB, and by sending her out of the workplace without just cause and discontinuing her benefits. These seven grievances were referred to arbitration before Arbitrator Brown who rendered a decision on August 14, 2012.

6In addition to filing the above grievances, the applicant filed a complaint against Ms. Henschel to the College of Nurses of Ontario. In her communication with the College, the applicant raised a series of complaints including the allegations she made against Ms. Henschel in her Application. By decision dated August 25, 2011, the Inquiries, Complaints and Reports Committee (“ICRC”) of the College upheld some of the applicant’s complaints, including the complaints relating to the allegations raised in the Application. The ICRC issued a letter of caution to Ms. Henschel for having failed to uphold the standards of practice of the nursing profession.

7On September 10, 2012, the respondents requested that the Application be dismissed under s. 45.1 of the Code. By Interim Decision 2012 HRTO 2038 the Tribunal ordered a preliminary hearing into whether the Application should be dismissed on this basis.

parties’ submissions

8The respondents submitted that the substance of the Application was appropriately dealt with by Arbitrator Brown’s decision and/or the settlement of grievance 08-226 and/or the ICRC decision.

9The applicant submitted that the substance of her Application was not dealt with by Arbitrator Brown in his award. She submitted that neither the grievance relating to Ms. Henschel’s comment (grievance 08-226) nor her reprisal allegations were before Arbitrator Brown. The applicant also submitted that the settlement between her union and the corporate respondent did not appropriately deal with the substance of her Application because she did not sign the settlement and had no knowledge that the union was settling her case. When asked, the applicant’s representative indicated that he did not have any submissions to make in relation to the ICRC decision.

Analysis

10Section 45.1 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.

11Section 45.1 requires a two-part analysis: (1) whether there was another “proceeding” and, if so, (2) whether it “appropriately dealt with the substance of the Application.”

12In my view, the substance of the applicant’s allegations against Ms. Henschel were appropriately dealt with by the ICRC decision and the substance of her reprisal allegations were appropriately dealt with by Arbitrator Brown’s award. In light of these findings, it is unnecessary for me to address the other arguments made by the respondents.

ICRC’s Decision

13The ICRC is governed by the Regulated Health Professions Act, 1991, S.O. 1991, c. 18, as amended (“RHPA”), the statute which establishes a comprehensive statutory scheme for adjudicating complaints arising from the relationship between patients and health professionals in Ontario. Under the RHPA, ICRCs are established to receive and investigate complaints related to each of the province’s self-governing health professions, including the nursing profession through the College of Nurses of Ontario.

14The Tribunal has held that a complaint determined by an ICRC constitutes a “proceeding” within the meaning of the Code. See V.N. v. Bartlett, 2012 HRTO 1947. See also College of Nurses v. Trozzi, 2011 ONSC 4614.The only remaining issue is whether the substance of the present Application was appropriately dealt with by the ICRC in this case.

15Section 45.1 of the Code is the statutory reflection of the collective principles underlying the common law doctrines of issue estoppel, collateral attack, and abuse of process. These doctrines are applied to avoid a multiplicity of proceedings on the same issue, and to protect the integrity of the administration of justice, all in the name of fairness. See British Columbia (Workers' Compensation Board) v. Figliola, 2011 SCC 52 at paras. 24-25.

16In Figliola, the Supreme Court of Canada found that a tribunal should ask itself the following questions in assessing whether the substance of a complaint has been dealt with in another proceeding:

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.

17The Tribunal may dismiss an application under s. 45.1 even if the other proceeding did not specifically make a finding of a Code violation. See V.N. v. Bartlett, above. As stated by the Tribunal in Paterno v. Salvation Army, 2011 HRTO 2298, at para. 25:

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 Qiu 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.

18In her complaint to the College of Nurses, the applicant included the same allegations against Ms. Henschel that she raised in her Application. Although the allegations are framed differently in each proceeding, the essence of these allegations is the same – that the applicant felt harassed and humiliated by Ms. Henschel’s actions and her comments about the applicant’s disability. In its decision, the ICRC upheld the applicant’s complaint. It found that Ms. Henschel had failed to meet her professional obligations by her conduct and the comments she made. Due to its finding with respect to this issue, as well as other issues raised by the applicant in her complaint, the ICRC issued a letter of caution to Ms. Henschel. In these circumstances, I find that the substance of the applicant’s allegations about Ms. Henschel’s comments has been appropriately dealt with by the ICRC. The essence of the applicant’s allegations against Ms. Henschel were raised in her complaint to the ICRC and determined by the ICRC in its decision. As a result, this part of the Application must be dismissed under s. 45.1 of the Code.

Arbitrator’s Award

19I find that the substance of the applicant’s reprisal allegations were appropriately dealt with by Arbitrator Brown’s award.

20As noted above, the applicant’s reprisal allegations relate to the fact that the respondent assigned her to hang ABS cables in March 2009. This issue was addressed in one of the grievances before Arbitrator Brown. In grievance 09-018, dated March 16, 2009, the applicant stated:

I grieve that the company has violated article 2.01 (D) and all related articles of the collective agreement by not treating me in a fair and reasonable manner. The company made me hang ABS cables when it was not within my restrictions.

21After hearing considerable evidence on the matter, Arbitrator Brown concluded that the corporate respondent did not breach its duty to accommodate under the Code by assigning the applicant to hang ABS cables or otherwise. Although the applicant has characterized the allegations in her Application as a claim of reprisal rather than a failure to accommodate, the substance of the allegations is the same: that the respondents breached the Code by assigning her to hang ABS cables in March 2009. If the applicant believed that the respondents breached the reprisal provision of the Code in addition to the provisions relating to the duty to accommodate, she and her union should have raised this argument before Arbitrator Brown. The reprisal matter is not a separate issue but instead a separate argument as to why the assignment was not “fair and reasonable” (using the language in the grievance) and/or violated the Code. For these reasons, I find that the reprisal issue is essentially the same as the issue raised in one of the grievances before Arbitrator Brown. Following the Supreme Court’s reasoning in Figliola, since the applicant had a chance to know the case to be met and an opportunity to meet it in the arbitration, I must dismiss the applicant’s reprisal allegations under s. 45.1 of the Code.

22Moreover, in order for the applicant’s reprisal allegations to succeed, the applicant would have to establish that the respondent intended to reprise against her when it assigned her to hang the ABS cables. See Noble v. York University, 2010 HRTO 878. It would be impossible for the reprisal allegation before the Tribunal to succeed unless the Tribunal were to make findings that contradicted those made by Arbitrator Brown in his award. This would lead to the kind of relitigation of issues that the Supreme Court determined was improper in Figliola.

23While I understand that the applicant does not agree with Arbitrator Brown’s decision, it is not my role under s. 45.1 of the Code to reconsider the evidence heard by Arbitrator Brown. My role is limited to considering whether the substance of her reprisal allegations were appropriately dealt with in the arbitration, within the context of the principles established in Figliola and this Tribunal’s case law. In applying these principles, I find that the applicant’s reprisal allegations must be dismissed under s. 45.1 of the Code.

ORDER

24For the reasons set out above, this Application is dismissed under s. 45.1 of the Code.