Edmund Rock v. Toronto Community Housing Corporation, 2013 HRTO 78

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Edmund Rock Applicant

-and-

Toronto Community Housing Corporation Respondent

DECISION

Adjudicator: Paul Aterman Date: January 15, 2013 Citation: 2013 HRTO 78 Indexed as: Rock v. Toronto Community Housing

APPEARANCES

Edmund Rock, Applicant Self-represented

Toronto Community Housing Corporation, Respondent Christina Henderin, Counsel

Introduction

1The applicant filed an Application on August 25, 2010 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the "Code") alleging discrimination in employment because of race and disability. This Decision addresses the issue of whether the Application should be dismissed pursuant to s. 45.1 of the Code on the basis that another proceeding has appropriately dealt with its substance.

Background

2The applicant was employed as a Community Patrol Officer by the respondent. He alleges that a workplace injury was never accommodated by the respondent and that ultimately his employment was terminated for issues relating to his attendance, which he claims flow directly from the respondent's failure to accommodate him.

3The applicant was represented in his employment relations by his union, which filed a grievance on his behalf challenging the termination. The grievance was referred to arbitration, and the Tribunal deferred the Application pending the completion of the arbitration process. An arbitration award was issued on June 8, 2012 upholding the termination of the applicant's employment.

4On July 20, 2012, the applicant filed a Request for Order During Proceedings requesting that the Application be reactivated. In response the respondent requested that the Application be dismissed pursuant to s. 45.1 of the Code, on the grounds that the arbitration award appropriately dealt with the substance of the Application.

5A teleconference hearing was held on January 11, 2013 to enable the parties to make oral submissions on the question of whether the Application should proceed or be dismissed. For the reasons set out below I conclude that it should be dismissed.

Applicant's Submissions

6The applicant maintains that there were shortcomings in the arbitrator's decision that justify proceeding with a hearing before the Tribunal. Specifically, the applicant maintains that the arbitrator focused on his conduct, when instead she should have focused on the respondent's conduct and, in particular, on the alleged failure of the respondent to accommodate the applicant's disability to the point of undue hardship.

Respondent's Submissions

7The respondent argues that the facts and issues in the grievance proceedings and in this Application overlap substantially and that the arbitrator issued an award which explicitly addressed the claimed human rights violations. The arbitrator dismissed the claims of discrimination because of disability and race. On this basis, the respondent argues that the arbitration award appropriately dealt with the substance of this Application. Allowing the Application to proceed would enable the applicant to relitigate the issues decided by the arbitrator. This would be an abuse of process.

Decision and Analysis

8In s.45.1 the Code provides that 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." In Paterno v. Salvation Army, 2011 HRTO 2298 at paras. 26-29 the Tribunal examined the relationship of this provision to proceedings where a labour arbitrator has found just cause for termination:

I turn now to the application of these principles where an arbitrator has previously dealt with the issue of cause for discipline. Collective agreements in unionized workplaces generally require that discipline be for just cause. When disciplinary measures are grieved, the onus is on the employer to prove, on a balance of probabilities, that there was cause for discipline. If cause is proven, an arbitrator may substitute a different penalty unless there is a specific penalty in the collective agreement (Labour Relations Act, 1995, S.O. 1995, c. 1, Sched. A, s. 48(17)). An arbitrator has the power and the duty to interpret and apply the Code (Labour Relations Act, s.48(12)(j)), and collective agreement rights and obligations must be interpreted in light of the Code: Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42.

It follows that there is no just cause for discipline or discharge imposed in contravention of the Code. When an arbitrator finds that an employer has proven just cause for discipline or discharge, this incorporates a finding that the discipline or discharge is consistent with the Code. Just cause presumes that the discipline was consistent with the employer's statutory obligations, including those under the Code.

The applicant argues that he and the union (which was following his wishes) did not pursue the Code issues and restricted their arguments at the arbitration to the submission there was no cause of discipline and discharge. This argument does not reflect the interaction of the Code and collective agreements and is not desirable as a matter of policy. The Code is not separate from just cause; rather, it infuses this concept and is an important part of it. It is not analytically correct or appropriate to ask an arbitrator to ignore possible Code breaches in finding whether there was cause, or to allow a grievor to save for later his or her Code objections to the cause for discipline. This would be contrary to the policy intentions of s.45.1 in preventing duplicative litigation. A grievor who pursues a grievance that discipline is without cause should raise all the arguments for that belief in the collective agreement proceeding he or she has commenced.

In my view, the essence of a holding by an arbitrator that there was just cause for discipline or discharge incorporates the conclusion that discharge did not violate the Code. An applicant who fails to raise alleged discrimination with his or her union or who asks the union not to raise such arguments about just cause in an arbitration will face dismissal of a subsequent application at the Tribunal regarding the discipline or dismissal. It would be an improper review of the substance of an arbitrator's decision, contrary to the principles in Figliola, to continue an application related to discipline or discharge where an arbitrator has found there was just cause. I need not address in this case the possible situation where the grievor wishes to raise human rights issues but the union refuses to do so.

9This reasoning applies here. In this case the arbitration hearing was another proceeding within the meaning of s.45.1. The arbitrator found just cause for termination. Her award provides a detailed account and analysis of the events that are central to this Application, including the circumstances surrounding the applicant's injury and how the parties conducted themselves up to the point of termination. In upholding termination the arbitrator explicitly addressed the allegations of discrimination on the basis of race and disability at paras. 58-61 of her award. She dismissed the claims of discrimination on both grounds. In doing so, she appropriately dealt with the substance of this Application. Any concern with whether the arbitrator appropriately addressed the human rights issues should have been raised through an application for judicial review of her award.

Order

10As the issues in this Application have been appropriately addressed in the arbitration proceedings, this Application is dismissed.