Mirjana Georgievska v. Kingdom Hotels Limited o/a Four Seasons Hotel Toronto, 2013 HRTO 818

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Mirjana Georgievska

Applicant

-and-

Kingdom Hotels Limited o/a Four Seasons Hotel Toronto

Respondent

DECISION

Adjudicator: Brian Cook

Date: May 15, 2013

Citation: 2013 HRTO 818

Indexed as: Georgievska v. Kingdom Hotels Limited

APPEARANCES

Mirjana Georgievska, Applicant

Laurie Kent, Counsel

Four Seasons Hotel, Respondent

Jeremy Hann and Kevin Coon, Counsel

INTRODUCTION

1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of disability.

2The respondent filed a Response which asked the Tribunal to dismiss the Application under section 45.1 of the Code on the grounds that a labour Arbitrator has appropriately dealt with the substance of the Application. The applicant submits that the arbitration process in this case was not a proceeding within the meaning of section 45.1 and that the Arbitrator did not appropriately deal with the substance of the Application.

3Section 45.1 of the Code provides as follows:

45.1 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.

4A preliminary hearing by telephone conference call was held on February 15, 2013. The parties appeared on the call and made submissions. During the call I invited the parties to make submissions on the decision of the Supreme Court of Canada in British Columbia (Workers' Compensation Board) v. Figliola, 2011 SCC 52 (“Figliola”). Post-hearing submissions were received from both parties.

BACKGROUND

5In 2011, the respondent started a process that led to the closure of a hotel it operated and the opening of a new hotel. The closure was announced in approximately October 2011 and the old hotel was closed in March 2012. The new hotel opened several months later.

6In November 2011, the employer posted a notice advising employees about the process for applying for transfer to the new hotel. The process featured a skills assessment and a testing procedure in respect of various job skills.

7The applicant was tested and did not pass the minimum requirements for consideration for transfer to the new hotel.

8The applicant alleges that the decision to not offer her employment was influenced by the fact that she had previously had a disability which required accommodation, although at the time of the transition process she did not require accommodation. She alleges that a supervisor told her that she would not get the job because of her disability.

9The employees of the old hotel were represented by a union and there was a collective agreement in place which had expired by the time of the change. The respondent voluntarily recognized the union as the bargaining agent for the employees of the new hotel. The union and the respondent negotiated a new Collective Agreement for the new hotel.

10The union and respondent also entered into a Memorandum of Agreement which was ratified by the employees in October 2011. The Memorandum included a number of provisions, including a retroactive wage increase and terms and conditions to be included in the new collective agreement that was to come into effect when the new hotel opened. These terms included recognition of seniority from the old hotel, provisions about overtime, gratuities, a retroactive wage increase and a schedule for future wage increases.

11The Memorandum of Agreement included a Transitional Agreement, set out in Schedules to the Memorandum. Schedule 3 established a process if an employee was not offered employment at the new hotel:

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 for the job selection of the individual and ensure that the criteria used by the Hotel was applied equally as against the person posting for 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.

12The Transitional Agreement also stated that “The Decision of the Reviewer shall be binding on the Parties for all purposes under the Collective Agreement and statute.”

13The applicant was an employee of the old hotel who was not selected for employment at the new hotel. She and two other employees who were also not selected filed a grievance under the above procedure. Arbitrator William Kaplan was selected as the Reviewer. He held a hearing at which the grievors were represented by union counsel and had the opportunity to present oral evidence.

14The Reviewer issued a Decision dated May 29, 2012. He noted that the respondent adopted a “knowledge test” as part of its selection process. He noted that there was no allegation that the test was unreasonable or unfair. The Reviewer found that the testing process was reasonable and that the reason the applicant was not hired was that she did not score high enough on the test even though she had been a valued employee.

15The Reviewer heard the applicant’s allegation of discrimination because of disability. The Decision states:

She believes that one of the reasons she was not selected is because of a disability that she suffered from in the past that required accommodation. That disability only affected her performance of a very short period of time.

16He concluded:

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 indicated an extremely unfortunate outcome for long-service employees. That is not a basis for arbitral interference especially given the extremely limited scope of arbitral review.

THE STATUS OF THE REVIEWER

17On behalf of the applicant, Ms. Kent concedes that a labour arbitrator has jurisdiction to apply the Code. Section 48(12) of the Labour Relations Act, 1995, SO 1995, c 1, Schedule A, gives an arbitrator the power, among other things, “to interpret and apply human rights and other employment-related statutes, despite any conflict between those statutes and the terms of the collective agreement.”

18Ms. Kent argues that the Reviewer in this case was not appointed as an arbitrator, but rather as a “reviewer”, with terms of reference that were limited in scope to a review of how the selection process was done. Ms. Kent submits that the reviewer was not an arbitrator within the meaning of section 48 of the Labour Relations Act. In her view, the review process was more like an internal review process than an independent arbitration process.

19On behalf of the respondent, Mr. Hann submits that the Reviewer was an arbitrator and that section 48 of the Labour Relations Act applies to give the Reviewer the power to apply the Code to the matter that was before him. Respondent’s counsel notes that at the time, this also seemed to be the union’s view as it submitted a “grievance” on the applicant’s behalf. He argues that at the time the union also appeared to believe that the reviewer had jurisdiction to deal with Code-related issues as the grievance alleged that the decision to not hire the applicant was a “violation of the Human Rights Code.”

20There is no dispute that the collective agreement in place in respect of employment at the old hotel was not applicable to the hiring process in respect of the new hotel. The new collective agreement took effect only when the new hotel opened. In the period between when the old hotel closed and new hotel opened, there was a general lay off. The employer and the union negotiated a Memorandum of Settlement that dealt with specific matters, including the job posting process for hiring staff at the new hotel and a process for selecting a reviewer in the event that an employee was not successful in the job posting procedure.

21Section 1 of the Labour Relations Act defines “collective agreement”:

“collective agreement” means an agreement in writing between an employer or an employers’ organization, on the one hand, and a trade union that, or a council of trade unions that, represents employees of the employer or employees of members of the employers’ organization, on the other hand, containing provisions respecting terms or conditions of employment or the rights, privileges or duties of the employer, the employers’ organization, the trade union or the employees, and includes a provincial agreement and does not include a project agreement under section 163.1”

22In my view, the Memorandum of Agreement between the employer and the union was a “collective agreement” for the purposes of the Labour Relations Act.

23Section 48(1) of the Labour Relations Act provides:

48. (1) Every collective agreement shall provide for the final and binding settlement by arbitration, without stoppage of work, of all differences between the parties arising from the interpretation, application, administration or alleged violation of the agreement, including any question as to whether a matter is arbitrable.

24The Memorandum of Agreement in this case had a limited and specific application. In regard to the job posting process for hiring staff, which was one of the specific matters covered by the Memorandum of Agreement, the Agreement established a “dispute resolution” process, set out in Schedule 3, quoted earlier. The Agreement stipulated that “the decision of the Reviewer shall be binding on the Parties for all purposes under the Collective Agreement and statute.”

25An arbitrator’s powers are always subject to the terms of the parties’ agreement. In this case the parties agreed to limit the scope of the review. However they also chose to be fully bound by the Reviewer’s determinations on that limited scope of review.

26The Reviewer’s authority was limited by the agreement to having “authority to understand the process and criteria used for the process and criteria for the job selection of the individual and ensure that the criteria used by the Hotel was applied equally as against the person posting for that position.”

27The fact that the scope of the review was limited does not mean that the reviewer was not an arbitrator for the purpose of section 48 of the Labour Relations Act. The role of the Reviewer was functionally identical to the role of an arbitrator - resolving disputes arising out of a collective agreement. The only difference was that the parties limited the scope of the review or the things that could be the subject of arbitration.

28I note that the Memorandum clearly contemplated that the Reviewer might conclude that the process and criteria used by the employer was not applied equally. It follows that the Reviewer would have power to make an appropriate order to remedy the unequal treatment and that this too would be binding on the parties.

29In my view, the review process undertaken by the Reviewer was a full and binding process established by collective agreement with respect to the specific issue identified in the Memorandum of Agreement.

30I find that for that purpose, the Reviewer was an arbitrator within the meaning of section 48 of the Labour Relations Act and that as a result he had jurisdiction, pursuant to section 48(12)(j) “to interpret and apply human rights and other employment-related statutes, despite any conflict between those statutes and the terms of the collective agreement.” Even if the Reviewer did not have this power pursuant to section 48(12)(j), as an arbitrator, he had jurisdiction to consider any Code issues that might arise in the context of the review that he was authorized to conduct: Parry Sound (District) Social Services Administrative Board v. O.P.S.E.U., Local 324, 2003 SCC 43.

31In my view the process before the Reviewer was a process before a person with the jurisdiction to deal with the Code-related issues raised before him and who made a determination on those issues.

32I am satisfied that the process before the Reviewer was a “proceeding” within the meaning of section 45.1

DID THE PROCEEDING APPROPRIATELY DEAL WITH THE SUBSTANCE OF THE APPLICATION?

33Ms. Kent argues that the Reviewer did not appropriately deal with the substance of the Application because, although the applicant did have an opportunity to provide evidence, she was limited to only ten minutes. As well, Ms. Kent submits that the respondent was not called on to provide any evidence to rebut the applicant’s allegations and there was no opportunity to test the respondent’s evidence through cross-examination. Ms. Kent also submits that the Reviewer did not appropriately deal with the substance of the Application because the decision incorrectly understood the nature of the job positions the applicant had applied for and did not provide reasons for the determination that there was no evidence of discrimination.

34In post-hearing submissions, Ms. Kent referred to the decision of the Supreme Court of Canada in British Columbia (Workers' Compensation Board) v. Figliola, 2011 SCC 52. Ms. Kent submits that the question that needs to be answered in the present case was set out at paragraph 37 of Figliola:

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.

35Ms. Kent argues that the Reviewer did not decide the same legal issue that is raised in the Application because the human rights issues were not fully canvassed and reasons were not provided for the finding that there had been no discrimination. Ms. Kent also submits that the process was not fair because it only addressed the question of why the applicant was not chosen for her own position and did not consider why she was not chosen for another position at the new hotel.

36Dunn v. Sault Ste. Marie (City), 2008 HRTO 149, reviewed the Tribunal’s approach to section 45.1 in the following terms at paragraph 45:

In Campbell v. Toronto District School Board, 2008 HRTO 62, the Tribunal discussed some principles that apply to the interpretation of s. 45.1. They include:

• Section 45.1 gives expression to a legislative intent to avoid the duplication of proceedings and the re-litigation of issues that have been dealt with elsewhere;

• The discretion given to the Tribunal in s. 45.1 is at least as broad as the doctrines of issue estoppel and abuse of process;

• In determining whether another proceeding has appropriately dealt with the substance of the application, the Tribunal should not be overly technical;

• The Tribunal does not act as an appellate court from the decisions of other tribunals, and the Tribunal need not be satisfied that it would have reached the same conclusion as that reached in the other forum.

37As the respondent notes in its submissions, the Tribunal has determined that in determining whether another proceeding has appropriately dealt with the substance of the application, the Tribunal will not expect that the other proceeding mirror a proceeding at this Tribunal, either in terms of the nature of the process or the substance of the analysis and findings.

38It appears to me that the Reviewer specifically addressed the applicant’s allegation that the employer had discriminated against her because of disability. It is clear from the Decision that the Reviewer understood the applicant’s allegation that the respondent had discriminated against her on the basis of disability. While the Code is not specifically referenced in the Decision, the Reviewer found no “evidence of discrimination on the basis of age, nationality or disability.”

39Even if the applicant’s allegations and concerns about the process are true, as noted earlier, this Tribunal does not sit as an appeal body over other decision-makers.

40It appears to me that the issue raised in the Application is exactly the same issue that the applicant raised before the Reviewer and that the Reviewer dealt with in the Decision.

41For these reasons, I find that the substance of the Application has been appropriately dealt with by another proceeding and, on that basis, I find that the Tribunal does not have jurisdiction to deal with the Application.

DECISION

42The Application is dismissed under section 45.1 of the Code because another proceeding has appropriately dealt with the substance of the Application.