Yunger v. Toronto (City), 2013 HRTO 962

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Eli Yunger Applicant

-and-

City of Toronto Respondent

-and-

CUPE, Local 79 Intervenor

INTERIM DECISION

Adjudicator: Mary Truemner Date: May 30, 2013 Citation: 2013 HRTO 962 Indexed as: Yunger v. Toronto (City)

APPEARANCES

Eli Yunger, Applicant Self-represented

City of Toronto, Respondent Jeffrey Board, Counsel

CUPE, Local 79, Intervenor J. James Nyman, Counsel

Introduction

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

BACKGROUND

2The applicant worked for the old City of Toronto prior to its amalgamation in 1997 with other municipalities that now make up the new City of Toronto, the respondent to this Application. The old City of Toronto and the old municipality called North York each offered retirement plans with benefits that the other old municipalities did not offer their employees. After amalgamation, the respondent and the applicant’s union, CUPE, Local 79 (“the Union”), which is an intervenor in this Application, negotiated a collective agreement for all of the respondent’s employees. With respect to employees who had previously been employed with the old City of Toronto and North York, it contained the following note (“the Note”):

Any employee who is eligible for retiree benefits beyond age 65 at the time that this Collective Agreement is ratified shall continue to be eligible for said benefits.

3At the time of amalgamation, the old City of Toronto provided post-65 retirement benefits to employees with ten years of credited pensionable service as long as they were at least 55 years old when they retired. On January 1, 1999, this requirement to be within 10 years of normal retirement age was changed so that a retiring employee only needed to be within 15 years of normal retirement age. Had the old City of Toronto not been amalgamated, and had he continued as its employee, the applicant would have received post-65 retirement benefits upon retirement provided that when he retired he was within 15 years of normal retirement age, defined as age 65, and provided that he had 10 years of credited pensionable service.

4At the time the collective agreement with the Note was ratified on May 11, 2000, the applicant had 22 years of service and was 46 years old. The applicant retired at the age of 55 in 2009.

5After ratification of the Collective Agreement on May 11, 2000, it became apparent that the City and the Union disagreed about the interpretation of the Note.

6The Union understood that the Note meant that employees, previously employed with North York or the old City of Toronto, were entitled to post-65 retirement benefits, even if they were not eligible for them on the date of ratification, provided that they were eligible upon retiring, whenever that might be. The City understood that the Note meant that only North York and old City of Toronto employees with sufficient years of service who met the eligibility criteria for benefits as of the date of ratification (who were 50 years old on May 11, 2000) were entitled to the retirement benefits.

The Union’s Policy Grievance

7The Union filed a policy grievance with respect to the Note. In 2006, Arbitrator Herman concluded that the City’s interpretation was correct, and he dismissed the grievance. The Ontario Divisional Court found that Arbitrator Herman’s decision was reasonable and dismissed the Union’s application for judicial review. (Canadian Union of Public Employees, Local 79 v. Toronto (City), 2009 CanLII 18287).

Individual Grievances

8After the Divisional Court issued its judicial review decision of Arbitrator Herman’s award, five individual grievances came before a different arbitrator, Arbitrator Randall, in another arbitration proceeding: two of the grievances had been filed in late 2003 (prior to the commencement of the grievance proceeding before Arbitrator Herman); two in 2008; and one in 2009. These grievances alleged, amongst other things, that the Note, as enforced by the City, contravenes the Code on the basis of age. Arbitrator Randall declined to take jurisdiction over the grievances and dismissed them. He concluded that res judicata, issue estoppel and abuse of process applied, in part because he found that even though the Union had not raised the issue of age discrimination before Arbitrator Herman, it could have. He also found that the Union was the party in both arbitrations despite the one grievance being a policy grievance and the others being grievances filed on behalf of individuals.

9On an application for judicial review by the Union, the Divisional Court found Arbitrator Randall’s decision to be reasonable. (Canadian Union of Public Employees, Local 79 v. Toronto (City), 2012 ONSC 1158). In the context of deciding whether the formal requirements for res judicata and issue estoppel were met, this second decision of the Divisional Court agreed that the parties were the same because the Union was the party in both arbitrations despite the grievance before Arbitrator Herman being a policy grievance and the others before Arbitrator Randall being grievances filed on behalf of individuals. However, at para. 42, the Divisional Court decision implied that an individual employee who was not a party to the arbitration proceedings might pursue his or her individual rights at this tribunal:

It is clear that the “same parties” requirement is met – the Union is the party to the collective agreement, not the individual grievors. By contrast, an individual may appear before the Human Rights Tribunal as an individual, and seek a remedy under the Code from that body. Section 45.1 of the Code, which is permissive, allows the Tribunal to refuse to deal with a complaint where the substance of the matter has been dealt with in another forum. This would permit affected individuals (including the grievors) to raise their rights before the Tribunal, and argue that s. 45.1 does not apply because the Herman award did not deal with their right to be free from discrimination on the basis of age.

The Application

10The applicant filed this Application alleging that the respondent, through its enforcement of the Note as interpreted by Arbitrator Herman, is discriminating against him because of age because the respondent says that it will refuse to provide him with post-65 benefits given that he was not yet 50 years old when the Note was ratified.

11The respondent requests that the Application be dismissed under Section 45.1 of the Code on the basis that another proceeding has appropriately dealt with the substance of the Application. The respondent also argues that the Application should be dismissed because it is res judicata, issue estoppel and an abuse of process given that the decision of arbitrator Herman and the Divisional Court upholding his ruling have decided the issue of which members of the Union are entitled to receive the post-65 retirement benefits.

SECTION 45.1 OF THE CODE

12Section 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.

13Section 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.”

14In Haykin v. Roth, 2009 HRTO 2017 at para. 30, the Tribunal wrote:

In applying section 45.1, however, the principal concern is not whether there has been related or parallel litigation, but whether the applicant has already had a full and fair opportunity to have the human rights claim considered by an adjudicator who had the jurisdiction to interpret and apply the Code.

15Neither party was able to cite a decision which dismissed an application under s.45.1 because another proceeding dealt with the substance of that applicant’s application even though the applicant was not a party to the other proceeding. This does not surprise me. In my view, s.45.1 should not normally be used to dismiss an Application where the applicant was not a party in the other proceeding.

16I note the analogous situation where the Tribunal has repeatedly refused to apply s. 45.1 where a union has withdrawn a grievance without the consent of the grievor/applicant: Poste v. Metro Ontario Inc., 2012 HRTO 2128; Dupuis v. Religious Hospitallers of St. Joseph of Cornwall, 2010 HRTO 1079 at para. 22-23; Jean v. Résidence St. Louis, 2011 HRTO 1800 at para. 18-19; Daoust v. Sudbury Regional Hospital, 2012 HRTO 1868 at para. 9-10; Shannon v. Renfrew (County), 2010 HRTO 930; Paterno v. Salvation Army, Centre of Hope, 2010 HRTO 10.

Policy Grievance before Arbitrator Herman

17There is no doubt that arbitration of a grievance is a “proceeding” under section 45.1, (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). However, the proceeding that resulted in Arbitrator Herman’s arbitral award focused on the contractual agreement between the Union and the respondent. Arbitrator Herman heard days of evidence with respect to the intent of the parties and whether they had a meeting of the minds. Arbitrator Herman concluded in his award, at para. 80, that the Union and the City each had honestly-held positions about what the Note to which they agreed meant, but their interpretations were different and irreconcilable. He stated:

I am therefore left with interpreting the NOTE based upon the language of the NOTE itself, when read in the context of other provisions of the Collective Agreement.

18Arbitrator Herman then analyzed those other provisions, and found, at para. 82:

Read logically and giving the words their most likely meaning in the context of the overall clause, the NOTE means that an employee had to be “eligible” as of the date of ratification, in the sense s/he had met the eligibility requirements for entitlement to the benefit as of that date. Those eligibility requirements are that the employee was at least age 50, and for Old City employees, had at least 10 years of credited pensionable service with the Old City (or the new City [after amalgamation and] prior to ratification). If s/he was so “eligible”, then the NOTE states that the employee would “continue to be eligible” for the benefit. The employee as of the date of ratification had to have met the eligibility requirements for entitlement to the benefit.

19Even if I were to find that s.45.1 might operate to dismiss an application by an individual when a policy grievance had dealt with the same or a similar dispute in dealing with a group or policy grievance, it is important to note that nowhere in Arbitrator Herman’s award is there any reference to the Code, to human rights or to discrimination. Arbitrator Herman did not appear to put his mind to the issue of whether the Note violated the Code because it discriminates on the basis of age, and it appears that none of the parties to that arbitration asked him to consider the Code.

20Although urged to do so by the respondent, I do not find it appropriate to dismiss the Application filed by the applicant under s.45.1 on the basis that the Union could have made the age discrimination argument before Arbitrator Herman but did not. The Tribunal has generally rejected s.45.1 requests to dismiss applications where applicants could have raised allegations of discrimination in other proceedings but did not. (See, for example, Maurer v. Metroland Media Group, 2009 HRTO 200; Colella v. Toronto Catholic District School Board, 2010 HRTO 678; Perricone v. Fabco Plastics Wholesale, 2010 HRTO 1655). I adopt the reasoning in A.F. v. Durham Regional Police Services Board, 2010 HRTO 1508 at para. 23:

Under the old Code, the Commission had discretion to decide not to deal with a complaint if the allegations “could” or “should” more appropriately have been dealt with under another Act. This provision was repealed, and the power granted to the Tribunal under s. 45.1 of the current Code requires that the substance of the application “has been” appropriately dealt with in another proceeding. Accordingly, the fact that the applicant could have raised an allegation of racial discrimination […] but did not do so [in another proceeding], does not provide a proper basis upon which I can find that the allegations of racial discrimination raised in this proceeding “have been” appropriately dealt with in the [other] process.

21Given that an allegation of age discrimination was not before Arbitrator Herman, and given that the applicant did not participate in that proceeding and therefore had no ability to raise the Code issues there, I find that the arbitration proceeding before Arbitrator Herman did not appropriately deal with the substance of the Application.

22The fact that the Divisional Court in Canadian Union of Public Employees, Local 79 v. Toronto (City), 2009 CanLII 18287, upheld Arbitrator Herman’s award as reasonable has no bearing on my determination of whether the proceeding before him appropriately dealt with the substance of the Application. The issue of whether the Note violated the Code because of age discrimination was not before the Divisional Court in its review of Arbitrator Herman’s award, and the Divisional Court, understandably, did not address it. I therefore find that the Divisional Court did not appropriately deal with the substance of the Application, and I deny the respondent’s request to dismiss the Application under s.45.1 on the basis of the proceeding before Arbitrator Herman or on the basis of the Divisional Court’s review of Arbitrator Herman’s award.

Grievance Before Arbitrator Randall

23The five individual grievances before Arbitrator Randall claimed that the Note violated the Code because of age discrimination by requiring that the employees be 50 years old on the date of ratification to be eligible for the post-65 benefits. The Union relied upon amendments to the Code with respect to age made in December 2006, after the Herman proceedings, to bolster its position that the Note was discriminatory and that the issues raised in the individual grievances were not before Herman.

24Arbitrator Randall declined jurisdiction over the grievances. At p.5 of his award decision, Arbitrator Randall described the Union’s allegations before him as follows:

The Union alleges that the NOTE, especially with respect to the 2008 and 2009 grievances, contravenes age discrimination provisions incorporated into collective agreements between the parties and, more importantly, it contravenes the age discrimination requirements prescribed by the Code. The Union submits that this issue was not dealt with by either the Herman Award or the Divisional Court review of same. Moreover, the Union argues that Code amendments which post date the Herman Award give further support to the Union’s submission that this is a new basis of attack.

25At p.6 of his award, Arbitrator Randall noted, “While the Union acknowledges that it did not argue before Herman that the City’s position on the Note was contrary to… the Code…, it submits that the amendments to the Code change the legal landscape sufficiently to distinguish this case from the case law relied upon by the Employer.” In the next paragraph, beginning on p.6, Arbitrator Randall decided as follows:

Despite Mr. Nyman’s creative arguments to the contrary, I have no difficulty in declining to take jurisdiction over these grievances.

In my view, the issue has been decided by Arbitrator Herman and upheld by the Divisional Court. While the Code was amended in the wake of that Award, I agree with the Employer that the changes to the age discrimination language in the Code have no impact on the issue before me. The Code amendments recognize an exception, set out in the ESA, for age-based benefit plans, which ESA exception pre-dates the Herman award. It was not argued before Herman for good reason. But, in any case, the amendment to the Code, post the Herman award, has no legal impact on the award and I so find.

In my view, while the doctrine of stare decisis does not apply to previous arbitration awards, a Court’s decision is binding on subsequent arbitration cases dealing with the same issue. I find that the Divisional Court’s decision in this matter is dispositive of same.

I also find that the three conditions required to ground a res judicata or an issue estoppel are present: 1) there is an Award between the same parties; 2) the matter in dispute is identical and involves an unaltered collective agreement and statutory regime; and 3) the new grievances have been brought for the same object or remedy. While the statutory regime has changed, for the reasons set out above, those statutory changes are not material to this Award and I so find.

Finally, and in any case, I adopt the reasoning of the Supreme Court of Canada in City of Toronto and CUPE, Local 79, supra [3 S.C.R. 77]. At paragraph 37, the Court says:

Canadian courts have applied the doctrine of abuse of process to preclude relitigation in circumstances where the strict requirements of issue estoppel (typically the privity/mutuality requirements) are not met, but where allowing the litigation to proceed would nonetheless violate such principles as judicial economy, consistency, finality and the integrity of the administration of justice.

For all of these reasons, the Employer’s preliminary objection is granted and the 5 grievances before me are dismissed.

26The Union judicially reviewed Arbitrator Randall’s award. The Union argued before the Divisional Court that Arbitrator Randall failed to deal with the issue of whether the Note discriminated against employees on the basis of age contrary to the Code.

27In Canadian Union of Public Employees, Local 79 v. Toronto (City), supra, at paras 29-35 and 52, the Divisional Court found as follows:

[29] The City’s fundamental argument on the preliminary objection was that the issue raised in the grievances before Arbitrator Randall had already been decided in the Herman Award, and that the Divisional Court had dismissed the Union’s challenge to that award.

[30] In response, the Union raised a number of arguments, including,

i. the fact that the Note in the collective agreement discriminated against employees on the basis of age contrary to the collective agreement and the Code;

ii. that these submissions concerning age discrimination were not made before Arbitrator Herman, and the Herman Award does not deal with these issues;

iii. that the failure to allege age discrimination before Arbitrator Herman should not preclude these arguments being raised in the instant case;

iv. that since Arbitrator Herman did not address these arguments, no issue of res judicata arose; and

v. fundamentally, the doctrines of res judicata, issue estoppel and abuse of process should not be applied to preclude individual employees from asserting a violation of a basic human right under a quasi-constitutional statute.

[31] Mr. Wray, for the Union, submits that Arbitrator Randall did not deal with these arguments in his award and that Arbitrator Randall also appears to have rejected the Union’s alternative argument to the effect that there were changes to the Code in late 2006, which were not argued before Arbitrator Herman, and which it was relying upon before Arbitrator Randall.

[32] The Union argued before Arbitrator Randall that the requirement that employees be 50 years old as of May 11, 2000, in order to be eligible for post 65 benefits, contravened the age discrimination provisions in the Code, which then defined age as between 18 years and 65 years.

[33] Arbitrator Randall was alive to this argument, as he was to the City’s response that it is an argument that the Union could have made before Arbitrator Herman (see p. 5 of the award). Arbitrator Randall’s conclusion that the doctrines of res judicata, issue estoppel and abuse of process applied was obviously premised on the basis that the doctrines covered not only arguments that were made, but also, those that could have been made before Arbitrator Herman. [emphasis added]

[34] As to the alternative argument relating to the Code amendments in 2006, Arbitrator Randall dealt with it by stating “I agree with the Employer that the changes to the age discrimination language in the Code have no impact on the issues before me.” (award, at p. 5). Arbitrator Randall also noted that the Code amendments recognize an exception, set out in the Employment Standards Act, 2000, S.O. 2000, c. 41 and its regulations, for age-based benefit plans, which exception pre-dated the Herman Award. Consequently, those statutory changes were not material to Arbitrator Randall’s award.

[35] We find that on a fair reading of the award, Arbitrator Randall did deal with the discrimination arguments raised by the Union.

[52] In this case, we find that Arbitrator Randall correctly articulated the doctrine of res judicata and issue estoppel and reasonably applied it to the circumstances before him. The Herman Award determined the issue in dispute between the parties (i.e., the interpretation of the Note) and the entitlement (if any) of those employees who did not meet the eligibility criteria at the time the 2000 collective agreement came into effect. The age discrimination argument could have been raised before Arbitrator Herman but was not. To the extent that certain amendments to the Code took place subsequently, as Arbitrator Randall found, they had no legal impact on the issues before him.

28In para. 33 above, the Divisional Court concluded that Arbitrator Randall declined jurisdiction, because of res judicata, issue estoppel and abuse of process, over the alleged Code issue because the Union “could have” made the human rights argument before Arbitrator Herman. The Divisional Court found that Arbitrator Randall’s award was reasonable.

29The language under s.45.1 of the Code allows me to exercise my discretion and dismiss this Application if the subject matter of it “has been” dealt with in the proceeding before Arbitrator Randall. He declined jurisdiction to deal with an allegation that the Note violates the Code. He cannot, then, have dealt with the substance of the Application. Given this, and, as discussed above, the absence of the applicant’s participation in the proceeding before Arbitrator Randall, I deny the respondent’s request to dismiss the Application under s.45.1 on the basis of the proceeding before Arbitrator Randall or on the basis of the Divisional Court’s review of his award.

RES JUDICATA, ISSUE ESTOPPEL AND ABUSE OF PROCESS

30The respondent not only takes the view that the Application should be dismissed under s. 45.1 of the Code. It also argues that the Application should be dismissed under the doctrines of res judicata, issue estoppel and abuse of process. Although these arguments are largely dealt with by the analysis above, I will consider the submissions of the parties in respect of what I consider to be elements of the discretion granted in section 45.1.

31Arbitrator Randall may have been reasonable in declining jurisdiction over the grievances filed by the Union under the doctrines of res judicata and issue estoppel, but those doctrines would not apply in this case given that one of the three formal requirements for the doctrines to apply, that the parties be the same, is not met. While the respondent urges me to find that the applicant was a party in the grievance arbitrations by virtue of belonging to the bargaining unit the Union represents, I cannot find that he was a party, noting that the Divisional Court had the following to say about same parties:

[41] Arbitrator Randall finds that the formal requirements for res judicata and issue estoppel are met in that “1) there is an Award between the same parties; 2) the matter in dispute is identical and involves an unaltered collective agreement and statutory regime; and 3) the new grievances have been brought for the same object or remedy.” (award, at p. 7). It is important that Arbitrator Randall notes the matter in dispute is identical, rather than simply the “issues” in dispute, as the Union is, in effect, attempting to re-litigate the Note using a fresh set of arguments, and using individual grievors rather than a policy grievance.

[42] It is clear that the “same parties” requirement is met – the Union is the party to the collective agreement, not the individual grievors. By contrast, an individual may appear before the Human Rights Tribunal as an individual, and seek a remedy under the Code from that body. Section 45.1 of the Code, which is permissive, allows the Tribunal to refuse to deal with a complaint where the substance of the matter has been dealt with in another forum. This would permit affected individuals (including the grievors) to raise their rights before the Tribunal, and argue that s. 45.1 does not apply because the Herman award did not deal with their right to be free from discrimination on the basis of age.

32With respect to abuse of process, the Divisional Court decided as follows:

[53] We read Arbitrator Randall’s brief reference to Toronto (City) v. CUPE, Local 79, as an alternative basis for refusing to hear the grievances even if one of the technical requirements of res judicata or issue estoppel is not met. There is no explicit statement as to which of the various concerns identified in the quote (judicial economy, finality, and integrity of the administration of justice) motivated Arbitrator Randall. However, it is not necessary under the Newfoundland Nurses test for Arbitrator Randall to provide detailed reasons for which sub-elements of the principles of abuse of process he found applied to the grievances.

[54] In particular, it is clear from elsewhere in the award that Arbitrator Randall was concerned with the attempt to re-litigate the Note through the use of individual grievances where a policy grievance was unsuccessful, and on this basis alone, it is easily inferable that he was concerned with re-litigation of the Note and considered it an abuse of process. Moreover, its invocation must be read in context of the findings that these issues could have been raised before Arbitrator Herman. As such, if nothing else, these circumstances invoke the principles of finality between the parties to the collective agreement.

[55] The application of the doctrine of abuse of process in the circumstances of this case was therefore reasonable.

33The Divisional Court, then, found that Arbitrator Randall was reasonable in finding an abuse of process, and blocking the Union in its “attempt to re-litigate the Note using a fresh set of arguments” (para. 54).

34The Tribunal has the jurisdiction to stay or dismiss an application if to proceed would amount to an abuse of process. This discretionary power is confirmed by section 23(1) of the Statutory Powers Procedures Act, R.S.O. 1990, c. S. 22, which provides that “a tribunal may make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes.”

35In Snow v. Honda of Canada Manufacturing, 2007 HRTO 45, the Tribunal explained the doctrine of abuse of process as follows (at para. 55):

The Supreme Court of Canada has stated that the doctrine of abuse of process is appropriately used to preclude relitigation in circumstances where the strict requirements of issue estoppel (typically the privity/mutuality requirements) have not been met, but where allowing the litigation to proceed would nonetheless violate principles such as judicial economy, consistency, finality, and the integrity of the administration of justice.

36In my view, the principles of judicial economy, consistency and finality are not undermined by permitting the applicant to raise the age discrimination issue before this Tribunal, particularly given that the applicant was not a party or participant in the grievance arbitrations, and given that those arbitrations never decided whether the Note discriminates against employees on the basis of age, let alone whether the respondent is discriminating against the applicant on the basis of his age. The applicant believes that the City’s refusal to provide him with post-65 benefits is discriminatory. There has been no adjudication of this issue. It would not be an abuse of process to allow his Application to proceed.

37I deny the request to dismiss the Application because res judicata, issue estoppel or abuse of process do not apply in this case.

NEXT STEP - TELECONFERENCE HEARING

38Although I refuse the respondent’s requests above, I note that the Response states, “… should the HRTO not be prepared to dismiss this matter [under s.45.1, res judicata, issue estoppel or abuse of process], the Respondent will be requesting that the HRTO provide the parties with a summary hearing.”

39The respondent did not make submissions at the preliminary hearing that the respondent’s refusal to provide the applicant with post-65 benefits has no reasonable prospect of success. However, having reviewed the Application, I note that it appears that section 25(2.1) of the Code acts to exempt the respondent’s age requirement for post-65 benefits. If this is the case, then the Tribunal has no jurisdiction over the Application. Section 25(2.1) states:

The right under section 5 to equal treatment with respect to employment without discrimination because of age is not infringed by an employee benefit, pension, superannuation or group insurance plan or fund that complies with the Employment Standards Act, 2000 and the regulations thereunder.

40I also note that the Application may be premature given that the discrimination alleged appears to be contemplated, but not yet actually experienced. The applicant is not yet 65 years old, and has obviously not yet experienced any denial of post-65 benefits.

41I also note that the provision in the Code against announced intentions to discriminate, section 13, does not appear to apply to the respondent’s position that the applicant will not be entitled to the benefits.

42In the circumstances, the Registrar will schedule a half-day preliminary hearing by teleconference. The applicant will proceed first. The applicant shall make argument about why the Application should not be dismissed. No witnesses will give evidence during the preliminary hearing.

43A Notice of Preliminary Hearing will follow from the Registrar’s Office. The parties shall deliver to each other and file with the Tribunal copies of any further documents or cases they intend to rely upon no later than 14 days prior to the teleconference.

DIRECTION

44The Registrar will schedule a half-day preliminary hearing by conference call. The parties shall deliver to each other and file with the Tribunal copies of any further documents or cases they intend to rely upon no later than 14 days prior to the teleconference.

45I am not seized.