Bosnitch v. Humber College Institute of Technology, 2013 HRTO 876

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Katherine Bosnitch Applicant

-and-

Humber College Institute of Technology and Advanced Learning Respondent

INTERIM DECISION

Adjudicator: Alison Renton Date: May 21, 2013 Citation: 2013 HRTO 876 Indexed as: Bosnitch v. Humber College Institute of Technology

APPEARANCES

Katherine Bosnitch, Applicant Christian Vernon, Counsel

Humber College Institute of Technology and Advanced Learning, Respondent Brenda Bowlby, Counsel

Introduction

1This is an Application filed on April 12, 2011 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 and reprisal. The applicant is a professor and is a unionized employee, represented by the Ontario Public Service Employees Union, Local 562 (“the union”). The union has not filed a Request to Intervene. In her Application, the applicant alleges that the respondent has failed to accommodate the needs of her disability over a period of time, which covers different semesters.

2The respondent filed a Response in which it requested that the Tribunal dismiss part of the Application under section 45.1 of the Code because of an arbitration award dated November 7, 2010 which addressed some of the issues raised in the Application.

3A conference call hearing was held with the parties to address the section 45.1 issue. Both parties participated in the call. Prior to the hearing, both parties filed case law and the applicant filed submissions.

the arbitration award

4The applicant filed a workload complaint under the collective agreement between the respondent and the union pertaining to her work assignment for the fall semester of 2010. In the workload complaint, the applicant alleged that the respondent failed to accommodate her disability and the issue was addressed through an expedited grievance procedure under the collective agreement.

5Arbitrator David Whitehead (“the arbitrator”) heard evidence by the parties and issued an award dated November 7, 2010 (“the award”) dismissing the applicant’s grievance.

the applicant’s position

6Prior to the conference call, the applicant wrote to the Tribunal advising that she was prepared to withdraw allegations of Code breaches relating to the period from September 8, 2010 to December 18, 2010. During the conference call, the applicant explained that she was prepared to withdraw the allegations from September 8, 2010 to December 18, 2010 as well as her allegations that pre-date September 8, 2010 for the purposes of establishing a Code violation; however, she wanted to rely upon them during the merits hearing for the purpose of providing context to her subsequent allegations. In reply, the applicant submitted that she has different views from the arbitrator about the September to December 2010 time period and she has the right to put forward those views and be cross-examined on them.

7The Application, she submitted, raises ongoing Code breaches as she alleges that workload assignments following December 2010 have not acknowledged her disability and the respondent has continuously failed to accommodate her. Specifically, those allegations are found at point 4, page 3, and paragraphs 43 and 44 of her Application.

8With respect to the arbitration award, the applicant submitted that the arbitrator did not find that she did not have a disability within the meaning of the Code. Instead, the arbitrator found that for the time period in question, September 8 to December 18, 2010, the applicant did not have a disability under the Code which required the respondent to accommodate her.

the respondent’s position

9The respondent submits that the process which resulted in the arbitration award is a “proceeding” within the meaning of section 45.1 of the Code. The arbitrator appropriately dealt with the substance of the issues raised in the Application for the period from September to December 2010 as he found that during this period the applicant did not have a disability which the respondent was required to accommodate.

10Further, the respondent submits, following the principles discussed in British Columbia (Workers’ Compensation Board) v. Figliola, [2011] 3. S.C.R. 422 (“Figliola”), the applicant should not be permitted to re-litigate issues which were before the arbitrator. This includes not just allegations during the time period September to December 2010, but also allegations pertaining to the standard workload form (“SWF”) which was the subject of the arbitration award.

11In response to the applicant’s submissions that the allegations that pre-date September 2010, as well as those from September to December 2010, are being relied upon by the applicant to provide context rather than to allege a violation of the Code, the respondent notes that the applicant cannot do this without regard to the conclusions reached by the arbitrator in the arbitration award. The applicant is bound by the findings of the arbitrator, as is the Tribunal, and accordingly the applicant cannot make allegations which are inconsistent with the arbitrator’s findings, notwithstanding her attempt to rely upon them to provide context.

law and analysis

12Section 45.1 of the Code grants the Tribunal discretion to dismiss an application, in whole or in part, if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application. It says:

The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is the opinion that another proceeding has appropriately dealt with the substance of the application.

13The Tribunal has interpreted section 45.1 of the Code as requiring consideration of a two-part test: (1) whether there was another “proceeding”; and (2) if so, whether the proceeding “appropriately dealt with” the substance of the Application. The Tribunal’s jurisprudence has explained that 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: see Campbell v. Toronto District School Board, 2008 HRTO 62.

14The Tribunal has found that the Supreme Court of Canada’s reasoning in Figliola applies to the interpretation of section 45.1 of the Code: see Gomez v. Sobeys Milton Retail Support Centre, 2011 HRTO 2297. In Figliola, the Supreme Court noted that the re-litigation of issues that have been previously decided in an appropriate forum may undermine the public’s confidence in the fairness and integrity of the judicial system by creating inconsistent results and unnecessarily duplicative proceedings. Since Figliola, the Supreme Court of Canada has also issued Penner v. Niagara (Regional Police Services Branch), 2013 SCC 19, which also addresses the re-litigation of issues that have been decided in another forum by the application of issue estoppel.

15In numerous decisions, the Tribunal has held that the arbitration process is a “proceeding” within the meaning of section 45.1 of the Code. See, for example, Delos Santos v. Maple Lodge Farms, 2009 HRTO 1690 at para. 20 and Paterno v. Salvation Army, 2011 HRTO 2298 at para. 22. In this Application, it is clear that the arbitration process which resulted in the award was a proceeding within the meaning of section 45.1 of the Code.

16It is also clear that the arbitrator considered the human rights allegations before him. At page 3 of the award, the arbitrator found that he had the jurisdiction to “…consider the issue of accommodation under the Human Rights Code [sic], I find now, as Workload Resolution Arbitrator Stephens did, that I must consider the issues of human rights and accommodation in the manner in which the SWF was issued”.

17After making this determination, he went on to consider whether the respondent failed to accommodate the applicant’s disability. At pages 9 to 10 of the award, he wrote:

However, based on the evidence before me, including the Independent Medical Examination: Non-Medical Summary (July 16, 2010), and the one page (page 12 or 17) excerpt from the Full Medical Summary of the Independent Medical Examination: Psychology (June 18, 2010), I find that, at the material time, the complainant did not have a disability under the Human Rights Code and that therefore the Employer was not required under the Human Rights Code to accommodate her on the SWF issued July 29, 2010 for the period September 8 to December 18, 2010, and that the Employer did not violate the collective agreement in issuing the instant SWF.

18The arbitrator’s conclusion that the respondent did not fail to accommodate the applicant’s disability on the SWF for the period September 8 to December 18, 2010 is squarely on point with the allegations that the applicant makes in her Application. Accordingly, the arbitration appropriately dealt with that part of the Application that pertains to the SWF for the period September 8 to December 18, 2010 and the applicant cannot allege that this period violated her Code rights.

19However, the applicant now asserts that she is not relying upon her allegations pertaining to the SWF for the period September 8 to December 18, 2010, as well as those that pre-date September 2010, to allege that the Code was violated. Instead, she wants to rely upon them to provide context for her allegations after December 18, 2010 which she alleges violate the Code. In some situations, this may be appropriate. However, in this Application, I have concerns because of the amount of anticipated evidence that would be required to provide that context as well as concerns that the applicant is attempting to re-litigate the issues that were before the arbitrator.

20In response to Question 8 “What Happened?” on the Application form, the applicant sets out a narrative consisting of more than 7 pages and 46 paragraphs of single spaced narrative inclusive of details about dates, locations, documents, and identifying a number of people. It is not until paragraph 42 that allegations that post-date the SWF for the period September 8 to December 18, 2010 appear. Up to that point, the narrative pertains to either pre-September 2010 information or allegations pertaining to the SWF for the period September 8 to December 18, 2010.

21In Carasco v. University of Windsor, 2011 HRTO 1931, the Tribunal referred to the following comments from DeFreitas v. OPSEU, 2010 HRTO 618, in relation to hearing contextual evidence in relation to systemic discrimination issues:

…. there is always a tension between focussing on evidence that is directly related to the allegations at issue and the scope of relevant evidence regarding the broader institutional context in which these events took place. The danger inherent in simply opening the hearing room doors to hear a broad range of such contextual evidence is that it may cause the hearing to be sidetracked by collateral issues as the respondents necessarily have the right to call evidence to rebut the broader contextual evidence that the applicant seeks to adduce.

22The Application before me, however, is not about systemic discrimination but instead about the respondent’s alleged discrimination against the applicant on the grounds of disability and reprisal. It seems to me that if the Tribunal were to continue to allow the applicant to testify about all of the paragraphs in the Application, this would significantly and unnecessarily lengthen the hearing as not only would the applicant testify about this contextual evidence during her examination-in-chief, but she would also be subjected to cross-examination on this evidence. Furthermore, within these allegations, and excluding any medical personnel, there are more than 10 individuals identified with whom the applicant had contact and about whom she raises concerns. Presumably, one or both of the parties may want to call these individuals as witnesses in support of the applicant’s contextual evidence or to rebut it and ultimately this will be evidence on collateral issues not before the Tribunal adjudicator.

23I am also concerned with the applicant’s comments, during the hearing, that she has a different view of the SWF issues upon which the arbitrator rules and that it is “her right to put forth those views” during the merits hearing. In light of these comments, it may be that the applicant is attempting to have another “bite at the cherry”, an expression that Mr. Justice Binnie used in Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44 at para. 18, and one which he explained is prohibited in the interests of finality of litigation and issue estoppel.

24However, at the end of the day, I find that what contextual evidence is permitted into the merits hearing is best determined by the adjudicator hearing the case either before or during the hearing.

order

25By virtue of section 45.1 of the Code, the applicant is prohibited from relying upon the allegations pertaining to the SWF in place from September to December 18, 2010 as establishing a violation of the Code. The applicant is also prohibited from relying upon the allegations that pre-date September 2010 to allege a violation of the Code.

26What contextual evidence the applicant is permitted to introduce at the merits hearing is left to the adjudicator assigned to that hearing.

27Although the applicant has agreed to mediation, the respondent has not. If the respondent is now agreeable to mediation, it has five days from the date of this Interim Decision to email the Tribunal, copying the applicant, to advise that it is agreeable to mediation and the Tribunal will schedule a mediation. If the Tribunal does not hear from the respondent within this time, the file will be placed in the queue to be scheduled for hearing.

28I am not seized with this matter.