Nowlan v. World Meats Inc., 2013 HRTO 747

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Patrick Nowlan

Applicant

-and-

World Meats Inc.

Respondent

INTERIM DECISION

Adjudicator: Sheri Price

Date: May 6, 2013

Citation: 2013 HRTO 747

Indexed as: Nowlan v. World Meats Inc.

APPEARANCES

Patrick Nowlan, Applicant

Michelle Mulgrave, Counsel

World Meats Inc., Respondent

Nav Bhandal, Counsel

Introduction

1This is an Application under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code") in which the applicant alleges that the respondent discriminated against him on the basis of disability with respect to employment.

2The applicant started to work for the respondent as a delivery truck driver in June 2010. The applicant alleges that, on October 17, 2011, following an intervention by his friends and family, he disclosed to the respondent employer that he had a disability, namely a drug and/or alcohol addiction, and that he would be entering a residential rehabilitation program for treatment of his disability. The applicant contends that the respondent discriminated against him when, instead of accommodating his disability-related needs, it terminated his employment on November 4, 2011, after the applicant had trained his replacement.

3For its part, the respondent submits that it was willing to give the applicant a leave of absence in order to attend a rehabilitation program, but terminated him on November 4, 2011 after it learned that the applicant had been smoking marijuana while driving the company vehicle on November 2, 2011. The respondent submits that this was a serious breach of company policies that prohibit employees from operating the respondent's vehicles while under the influence of drugs or alcohol, and that this justified its decision to terminate the applicant's employment.

4The respondent sought early dismissal of the Application pursuant to s.45.1 of the Code on the basis that another proceeding had appropriately dealt with the substance of the Application.

5Specifically, in February 2012, an Employment Standards Officer ("ESO") investigated the applicant's claim that he had not been paid two weeks' termination pay to which he was entitled under the Employment Standards Act, 2000, S.O. 2000, c.41 ("ESA"). In a decision dated February 29, 2012, the Officer found that the applicant had been smoking marijuana while driving the company vehicle, and that he was therefore guilty of wilful misconduct and not entitled to termination pay, pursuant to Regulation 288/01 under the ESA. The entirety of the ESO's reasons for dismissing the applicant's claim for termination pay were:

I find that the preponderance of evidence clearly suggests that the claimant was driving the company truck while smoking marijuana which is in breach of the company policy that the claimant had signed on June 23, 2010 acknowledging receipt of a copy and agreed to abide by it. Smoking marijuana while driving company truck (sic) was a serious offence that had put at risk not only the life of the claimant and the accompanying driver trainee but also the public at large who had the usage of public roads and highways. As such, I find that claimant is guilty of wilful misconduct pursuant to section 55 read in conjunction with section 2(1)3 of the Ontario Regulation 288/01 of the Employment Standards Act, 2000.

6A teleconference hearing was convened to hear the parties' submissions on whether the Application ought to be dismissed in whole or in part pursuant to s.45.1 of the Code.

7For the reasons that follow, I find that the ESO's February 2012 decision did not appropriately deal with the substance of the Application within the meaning of s.45.1 of the Code. The respondent's request that the Application be dismissed pursuant to s.45.1 of the Code is denied accordingly. The Application will continue in the Tribunal's process.

ANALYSIS AND DECISION

8Section 45.1 of the Code reads as follows:

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.

9The Tribunal has held that, in determining whether an Application ought to be dismissed pursuant to s.45.1 of the Code, it ought to consider: (1) whether there was another "proceeding" and (2) if so, whether it "appropriately dealt with the substance of the Application".

10Assuming without finding that the applicant's claim for termination pay that was determined by an Ontario Employment Standards Officer in February 2012 was a "proceeding" within the meaning of s.45.1 of the Code, I am not satisfied that the substance of the Application was "appropriately dealt with" in that proceeding.

11The applicant takes the position that the ESO's February 2012 decision about the applicant's entitlement to termination pay under the ESA did not deal with the substance of the Application. The applicant submits that the substance of this Application is (1) whether the respondent failed to accommodate his disability-related needs when he came forward in October 2011 to say that he needed to go into a rehabilitation program and/or later when the respondent allegedly found out that the applicant was smoking marijuana while driving; and (2) whether the applicant's disability was part of the reason the respondent decided to fire him, either because it formed part of what motivated the respondent's decision or because it was the applicant's disability that led him to commit the alleged misconduct that led to his termination. The applicant submits that the ESO did not have jurisdiction to consider the above issues, nor did he consider these issues. Accordingly, the applicant submits that there is no basis upon which to conclude that the ESO's decision appropriately dealt with the substance of the Application.

12The respondent disagrees. It submits that the Application is really about why the applicant's employment was terminated. Defined in that way, the respondent submits that there is no doubt that the "substance of the Application" was appropriately dealt with by the ESO's decision that the applicant was fired for wilful misconduct. According to the respondent, the applicant's case is that the respondent terminated his employment because it had learned that he had a drug addiction. However, the ESO concluded otherwise, submits the respondent. In particular, the respondent submits that, after questioning the respondent about its reasons for firing the applicant, the ESO found that the applicant was terminated because he drove the company vehicle while smoking marijuana, which was an act of "wilful misconduct" within the meaning of the ESA. The respondent submits that the ESO's finding that the applicant was guilty of "wilful misconduct" includes, by necessary implication, a finding that the applicant did not smoke marijuana because of addiction. The ESO found him to have freely chosen to do the behaviour, submits the respondent. This is implicit in the finding that the applicant's conduct was "wilful".

13Having carefully considered the submissions of the parties, I am not persuaded that the proceeding before the ESO appropriately dealt with the substance of the human rights Application.

14In his February 2012 decision, the ESO made a factual finding that the applicant drove the company vehicle while smoking marijuana, in breach of the company's policies. He also concluded, based on that factual finding, that the applicant had engaged in wilful misconduct within the meaning of the ESA and was therefore disentitled from receiving termination pay under the Act. In my view, these findings did not dispose of the issues in the human rights Application. For example, there is nothing in the ESO's decision to indicate that he dealt with or even considered whether the respondent's duty under the Code to accommodate the applicant's disability-related needs obliged it to respond to the applicant's alleged misconduct with something short of termination. Nor, as the applicant points out, is there any indication that the ESO determined whether the applicant's disability formed part of the reason the applicant's employment was terminated. Although this might not have been an issue under the ESA, it is an issue under the Code. As the Tribunal stated in Michalczyk v. Sudbury Condo Corp #9, 2012 HRTO 1736, at para. 33 and 34, even if there has been a finding of "wilful misconduct" under the ESA, it is still open to an applicant to try to establish that, notwithstanding such misconduct, a prohibited ground of discrimination nonetheless played a role in the decision to terminate his employment, and that his termination was therefore discriminatory.

15The respondent submits that, in rendering his decision on the applicant's entitlement to termination pay, the ESO did consider whether the applicant's disability played a role in his termination. In support of its position, the respondent points to the "Claimant's Evidence" section of the ESO's decision, which states:

Claimant states that a month later on November 4, 2011, the employer terminated him based upon the accusation that [he] was smoking marijuana while driving the truck. Claimant states that a few weeks before his termination he told his employer that he was entering a rehabilitation program. That, as a result of this information, the employer hired a driver to replace him.

16The respondent also relies upon the alleged fact that the ESO questioned the respondent, during his investigation (not in the presence of the applicant), as to why it had allowed the applicant to keep driving after being told that he needed to go into drug rehabilitation.

17Against that backdrop, and as noted above, the respondent submits that the ESO's conclusion that the applicant had engaged in an act of "wilful misconduct" must mean that the ESO determined that the applicant's disability played no role in either his misconduct or his termination for such misconduct. I cannot agree.

18The ESO's reasons for denying the applicant's claim for termination pay focus solely on whether the applicant smoked marijuana while driving, in breach of the respondent's policies. The officer does not address the issues that go to the heart of the human rights Application, namely whether the applicant had a disability; whether such disability contributed to his alleged misconduct; or whether termination as a response was consistent with the respondent's duties to the applicant under the Code. In my view, it would not be appropriate to assume that the officer reached conclusions about these issues that are not explicit in his decision. I agree with the applicant that the Tribunal ought not to infer that the substance of the human rights Application was considered, much less "dealt with", if there is nothing in the ESO's decision itself to lead to that conclusion. Neither the mere reference to the applicant's having told the respondent that he intended to go into rehabilitation, nor the fact that the ESO allegedly asked the respondent why it permitted the applicant to continue driving after that, is a sufficient basis upon which to conclude that the ESO dealt with the human rights issues in the Application, in the absence of any mention of such issues. Michalczyk, above, at para. 32-33; Saroyan v Deco Automotive, 2010 HRTO 1739; Carteledge v. SKL4EVR, 2010 HRTO 1891.

19The respondent relies upon the Tribunal's decision in Paterno v Salvation Army, 2011 HRTO 2298, in support of its argument that the ESO's finding the applicant was guilty of "wilful misconduct" implicitly included a finding that the termination of the applicant's employment was not tainted by a violation of the Code. However, in my view, Paterno is distinguishable from the case at hand. In Paterno, the Tribunal held that a decision by a labour arbitrator that an employee had been discharged for just cause incorporated a finding that the discharge was consistent with the employer's obligations under the Code. That conclusion was premised on the fact that the labour arbitrator, pursuant to s.48(12)(j) of the Labour Relations Act, 1995, S.O. 1995, c. 1, Sch. A, had full jurisdiction to hear and determine the applicant's claim that his employer had discriminated against him contrary to the Code. By contrast, there is no comparable provision in the ESA that gives ESOs concurrent jurisdiction to hear and determine human rights claims per se. In the circumstances, Paterno does not assist the respondent. Similarly, the Tribunal's decision in Acosta v Far Horizons Inc., 2012 HRTO 1478, is distinguishable insofar as the decision to dismiss pursuant to s.45.1 in that case was based on the court's jurisdiction to determine whether a person's rights under the Code have been infringed pursuant to s. 34(11) and 46.1 of the Code.

20The respondent also argues that the Application ought to be dismissed pursuant to s.45.1 of the Code because the ESO's factual finding that the applicant engaged in "wilful misconduct" makes it impossible for the Application to succeed. The respondent submits that the Tribunal has no alternative but to accept the ESO's factual findings, even if the case were to go forward.

21I disagree that the Application ought to be dismissed because of the ESO's finding of "wilful misconduct".

22First, the ESO's finding of wilful misconduct does not necessarily make it impossible for the Application to succeed. As discussed above, the applicant may still be able to establish discrimination under the Code by proving that disability was part of the reason for his termination.

23Moreover, I cannot agree with the respondent that the Tribunal is automatically bound to accept and apply the ESO's factual findings in a proceeding before it. As the respondent itself correctly points out, in order to find that a party is estopped from re-litigating a particular issue on the basis that it has been decided in an earlier proceeding, the adjudicator must be satisfied that the following three pre-conditions have been met:

1. the same question has been decided in an earlier proceeding;
2. the earlier judicial decision was final; and
3. the parties to that decision or their privies are the same in both proceedings.

24However, issue estoppel does not automatically apply where the above pre-conditions are met. As the Supreme Court of Canada emphasized in Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, [2001] 2 SCR 460, at para. 62-67, even where the pre-conditions for issue estoppel are met, the adjudicator must still determine, as a matter of discretion, whether issue estoppel ought to be applied. In exercising such discretion, the objective is to ensure that the operation of issue estoppel promotes the orderly administration of justice, but not at the cost of real injustice in the particular case. See also Carlos v. 1174364 Ontario, 2008 HRTO 403 at para. 22; Krpan v. Nimer, 2012 HRTO 33; Pilon v. Cornwall (City), 2010 HRTO 1509; Killeen v. Soncin Construction, 2013 HRTO 350 at para. 20-21.

25In this case, I find it appropriate to leave it for the hearing adjudicator to determine whether and to what extent the Tribunal is bound to accept and apply any of the ESO's findings in the hearing of the Application. Of course, to the extent that the applicant has indicated that he does not seek to challenge certain findings of the ESO, this may not be an issue.

26In sum, I find that the ESO's February 2012 decision regarding the applicant's claim for termination pay under the ESA did not appropriately deal with the substance of the human rights Application. The respondent's request that the Application be dismissed pursuant to s.45.1 of the Code is denied accordingly.

27I am not seized.