Joan Marshall-Wilkinson v. Her Majesty the Queen in Right of Ontario as represented by the Minister of Community Safety and Correctional Services, 2014 HRTO 1154

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Joan Marshall-Wilkinson

Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Minister of Community Safety and Correctional Services

Respondent

INTERIM DECISION

Adjudicator: Paul Aterman Date: July 31, 2014 Citation: 2014 HRTO 1154 Indexed as: Marshall-Wilkinson v. Ontario (Community Safety and Correctional Services)

APPEARANCES

Joan Marshall-Wilkinson, Applicant Self-represented

Her Majesty the Queen in Right of Ontario as represented by the Minister of Community Safety and Correctional Services, Respondent Christina Donszelmann, Counsel

background

1This Application alleges discrimination with respect to employment because of race, colour, ancestry, place of origin, and ethnic origin contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). Reprisal is also alleged.

2The applicant self-identifies as a black woman originally from Barbados. She was employed by the respondent at the Toronto Jail for 28 years and currently is the Assistant Office Manager at the Toronto South Detention Centre. She alleges that, with the exception of some recent appointments at the levels of Superintendent and Deputy Superintendent, racialised employees were not appointed to managerial positions at the Toronto Jail despite being experienced and qualified. She alleges that she has repeatedly been passed over for promotion and that employees with less experience and seniority were appointed to managerial positions that she was qualified to fill. The applicant maintains that her race, colour, ancestry, place of origin, and ethnic origin were factors in those appointment decisions.

3The applicant also alleges that because she filed a grievance that maintained that the respondent’s hiring decisions were discriminatory, she was subject to reprisal. She claims that the reprisal took the form of assigning her to an office in her new workplace that was at first unequipped, and then outfitted with old computers and furniture. The office is situated close to the lunchroom and the door has to be kept closed to shut out noise. The applicant shares the office with a co-worker.

4In 2005 a number of employees at the Toronto Jail received racist hate mail at home and at work. As a result a number of grievances were filed by employees, including by the applicant (although she had not directly received hate mail). I will refer to this grievance as the first grievance.

5A mediation was held by the Grievance Settlement Board (“GSB”) that resulted in a settlement of the grievances. The settlement terms included monetary compensation and provisions relating to developmental and promotional opportunities. The GSB Vice-Chair who conducted the mediation remained available to deal with any issues that might arise regarding implementation of the settlement.

6The applicant maintains that she agreed to the settlement under duress and that, but for the compensation she was paid, nothing has been done to implement the terms of settlement relating to developmental and promotional opportunities. Specifically, she alleges that the term of the settlement that she would job-shadow the Deputy Superintendent, Services was never implemented.

7The applicant filed a second grievance in July of 2011 alleging that a decision to end her assignment as Acting Office Manager of the Toronto Jail was discriminatory. With the exception of the reprisal allegation, the substance of the grievance is largely the same as the substance of the allegations in this Application.

8The respondent conducted an investigation into the applicant’s allegations pursuant to its internal policy on harassment and discrimination. An external investigator concluded that the allegations were not founded. The grievance was then heard by the GSB through a mediation-arbitration process and was denied on February 12, 2013.

9The respondent has made two requests. One is that the Application be dismissed for delay and the other is that it be dismissed because other proceedings have appropriately dealt with the substance of the Application. A preliminary hearing was held by teleconference on June 25, 2014 to deal with these requests.

10It is not necessary to address the issue of delay. The reason for this is that I find that the substance of the discrimination allegations have been appropriately dealt with through the grievance proceedings. As a result those allegations are dismissed. However, the reprisal allegations postdate both GSB proceedings and were not made out of time. Accordingly, they may proceed in the Tribunal’s process. The reasons below explain these conclusions.

the positions of the parties

11The respondent argues that the collective agreement between the applicant’s union and the respondent has an anti-discrimination clause, and that the GSB had jurisdiction to deal with the human rights aspects of the applicant’s grievances. It argues that in relation to both grievances the GSB addressed the human rights dimensions of the grievances and in doing so it appropriately dealt with the substance of the applicant’s Application.

12The applicant maintains that the GSB process for dealing with the grievances arising out of the racist hate mail sent to employees of the Toronto Jail was inappropriate because the mediation was a form of group process that dealt with the concerns of each employee in the same manner and resulted in generic solutions. She argues that the circumstances and concerns of employees were specific to individuals and that her grievance should therefore have been dealt with separately. She felt pressured by the union representative into accepting the settlement and agreed simply because the process had been going on so long, was exhausting, and she was told that this was the best resolution she could realistically expect. She argues that the settlement of the first grievance should be set aside because it was obtained under duress.

13Regarding the second grievance, the applicant maintains that the GSB Vice Chair who conducted the mediation-arbitration was abrupt and dismissive of her concerns. She maintained that the GSB spent more time listening to the arguments of management than to hers. Essentially the applicant believes that her Application should be allowed to proceed because the GSB mediation-arbitration process was unfair.

analysis

14In 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.”

15There are two issues to be determined here: whether the proceedings before the GSB in relation to each grievance constituted proceedings within the meaning of s.45.1 and, if they were, whether the GSB settlement of the first grievance and its decision in relation to the second grievance appropriately dealt with the substance of the discrimination allegations. In relation to the first issue, it is well established in the decisions of the Tribunal that proceedings before the GSB are proceedings within the meaning of s.45.1.

16Regarding the second issue, I find that where there is an overlap with the allegations in this Application, the settlement of the applicant’s first grievance appropriately dealt with the substance of those allegations. The overlap is in relation to the respondent’s alleged failure to provide for opportunities for the applicant to improve her skills and increase her experience in order to improve her chances of obtaining developmental assignments or promotions.

17The Memorandum of Settlement of the first grievance expressly states that the settlement is a full and final resolution of all matters arising from the grievance. Human rights complaints are specifically included in the scope of that comprehensive resolution. The Memorandum sets out in detail the training and job shadowing opportunities available to the applicant. It clearly emphasises that the applicant agrees that the facts underlying the grievance will not form the basis of any future proceedings against the respondent. There is a paragraph which states that the applicant fully understands the terms of the Memorandum, including the release. Finally, the Memorandum spells out that the GSB remains available to address any issues regarding implementation of its terms.

18The applicant’s argument that the Memorandum should be set aside because she agreed to it under duress fails. The Ontario Court of Appeal described the elements of economic duress in Taber v. Paris Boutique & Bridal Inc. (Paris Boutique), 2010 ONCA 157 as follows at paras. 8-9:

There is no doubt that economic duress can serve to make an agreement unenforceable against a party who was compelled by the duress to enter into it. Nor is there any doubt that the party can have the agreement declared void on this basis.

However, not all pressure, economic or otherwise, can constitute duress sufficient to carry these legal consequences. It must have two elements: it must be pressure that the law regards as illegitimate; and it must be applied to such a degree as to amount to “a coercion of the will” of the party relying on the concept. See: Stott v. Merit Investment Corp., 1988 CanLII 192 (ON CA), 63 O.R. (2nd) 545 (Ont. C.A.), at para. 89.

19Here the applicant has not pointed to any pressure exerted on her that the law would regard as illegitimate, nor has she shown that her will was coerced when she decided to sign. She was represented and received advice from her union. Her argument that she only agreed to the settlement because the process was long, exhausting and she had no more energy to devote to it amounts to saying that she made a choice about how much time and effort she felt was worth putting into the process. In other words, it is about a choice that the applicant made rather than one she was coerced into making. While she may not be satisfied with the terms of settlement, her dissatisfaction is not a basis to set aside the Memorandum.

20If she feels that terms of the Memorandum were not respected, the proper route for her to follow is to request her union to raise those concerns with the GSB. The settlement specifically provides that the GSB remains available to deal with implementation issues. For these reasons I conclude that the settlement of the first grievance appropriately dealt with the substance of the allegations in her Application that relate to the alleged failure of the respondent to offer her training and developmental opportunities.

21The applicant’s second grievance sets out in detail her allegations that systemic racism prevails in hiring decisions at the Toronto Jail and that this has caused her to be consistently passed over for promotion. The grievance asserts that the termination of her acting assignment as Office Manager was informed by discriminatory considerations.

22The applicant’s argument regarding the hearing of the second grievance is that the mediation-arbitration process was unfair because the GSB Vice Chair was dismissive of the union’s case.

23Since the decision of the Supreme Court of Canada in Penner v. Niagara (Regional Police Services Board), 2013 SCC 19 (“Penner”), and the Tribunal’s interpretation of Penner in Claybourn v. Toronto Police Services Board, 2013 HRTO 1298, it is clear that in examining whether a proceeding has appropriately dealt with the substance of an alleged human rights violation, it is necessary to look at whether it would be unfair to use the results of that other proceeding. As noted by the Tribunal in K.M. v. Kodama, 2014 HRTO 526 at para.52:

Having considered the parties’ submissions, I agree with the decision in Claybourn that the fairness of using the results of another proceeding to bar a human rights Application is a principle that ought to be considered in applying s.45.1 of the Code; and that the Tribunal should not dismiss an Application as having been “appropriately dealt with” in another proceeding where it would be unfair to use the results of the other proceeding to that end, taking into account the nature of the other proceeding, the applicant’s stake in it and the parties’ reasonable expectations about the impact of the earlier proceeding on their broader legal rights.

24In dealing with the second grievance the GSB issued no reasons for its decision. The GSB decision simply says:

Having carefully considered the submissions of the parties, as well as the jurisprudence of the Board, I hereby deny this grievance.

25The absence of reasons for decision is due to the fact that the second grievance was dealt with in accordance with a protocol agreed upon by the respondent and the union to manage grievances efficiently. The preamble to the protocol emphasises the need for speed in resolving workplace disputes. To that end, the protocol provides that decisions issued under the mediation-arbitration process will be without reasons.

26In conducting an analysis pursuant to s.45.1 the challenge of assessing whether it would be unfair to rely on the result of another proceeding is heightened if there are no reasons for decision that explain the outcome of the other proceeding. This is because the reasons for decision usually explain what issues were being adjudicated, what evidence was brought forward and how the evidence was weighed. However, the absence of reasons for decision does not, of itself, lead to a conclusion that it would be unfair to rely on the results of the proceeding.

27In this case it is clear that the issues before the GSB in the second grievance are essentially the same as the issues in this Application. The second grievance alleges a background of systemic racism in the staffing processes of the Toronto Jail and then goes on to relate them to the applicant’s particular circumstances and the decision to end her acting assignment. These were the only allegations before the GSB and they encompass alleged violations of the Code. In my view there is no doubt that these are the allegations the GSB considered when it decided to deny the grievance.

28In that sense this case is distinguishable from the Tribunal’s decision in Beausoleil v. Ontario (Community Safety and Correctional Services), 2013 HRTO 1553 (reconsideration denied in Beausoleil v. Ontario (Community Safety and Correctional Services), 2014 HRTO 123). In Beausoleil the Tribunal was dealing with a s.45.1 issue in circumstances where multiple grievances were dealt with in accordance with a protocol for expedited resolution. There it was impossible for the Tribunal to discern from the cursory reasons of the Vice-Chair whether the GSB decision had been made on the particular grievance which overlapped with the Application that the Tribunal was dealing with. Here there is no such ambiguity because there was only one grievance before the GSB and it overlaps wholly with the substance of this Application. Unlike in Beausoleil, there is no uncertainty as to what the GSB decided.

29The GSB had the authority and duty to consider whether the Code was breached. The overlap of the discrimination allegations in this Application with the issues in the second grievance mean that the GSB’s disposition of the second grievance appropriately dealt with those overlapping issues.

30For the above reasons I find that the GSB mediation-arbitration process, along with the settlement of the first grievance, appropriately dealt with the substance of all of the discrimination allegations in this Application. As a result they are dismissed.

31The reprisal allegations outlined in the applicant’s Reply pertain to events in January of 2014, when the applicant began working at the Toronto South Detention Centre. She alleges that the condition of the office she was assigned to and the equipment she was given reflect an intent by the respondent to retaliate because she asserted her Code rights through the grievance process. These allegations were not addressed through the grievance process and allegedly occurred shortly after the filing of her Application. As a result they are neither barred by s.45.1 nor by delay and can proceed in the Tribunal’s process.

order

32The allegations of discrimination are dismissed. The allegations of reprisal can proceed in the Tribunal’s process.