A.G. v. Bombardier Aerospace Inc., 2014 HRTO 1164

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

A.G.

Applicant

-and-

Bombardier Aerospace Inc.

Respondent

DECISION

Adjudicator: Dawn J. Kershaw

Date: August 1, 2014

Citation: 2014 HRTO 1164

Indexed as: A.G. v. Bombardier Aerospace Inc.

APPEARANCES

A.G., Applicant

Self-represented

Bombardier Aerospace Inc., Respondent

Joseph Blinick and Michelle MacGillivray, Counsel

Introduction

1This Application alleges discrimination with respect to employment because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant alleges the respondent should have accommodated him by providing him with appropriate modified work, that the applicant was harassed and that his termination from employment was a breach of the Code.

2This Application was deferred on consent on February 6, 2013 pending the conclusion of a grievance arbitration.

3In a February 21, 2014 Request for an Order During Proceedings (“RFOP”) the applicant requested the Application be reactivated and included a copy of the January 13, 2014 grievance arbitrator’s decision (“the arbitrator’s decision”). The applicant also requested this Application be anonymized because he was concerned about potential disclosure of his medical information.

4In its March 17, 2014 Response to the RFOP, the respondent requested the Application not be reactivated and it be dismissed pursuant to s. 45.1 of the Code because the grievance arbitration has appropriately dealt with the substance of the Application.

5A preliminary hearing on these issues was held by teleconference. Both parties attended and made oral submissions. The parties also provided written submissions at the request of the Tribunal on the Penner case.

anonymization

6The applicant seeks an order pursuant to Rule 3.11 of the Tribunal’s Rules of Procedure which states:

3.11 The Tribunal may make an order to protect the confidentiality of personal or sensitive information where it considers it appropriate to do so.

7The respondent did not oppose the applicant’s request for anonymization. Given the nature of the applicant’s sensitive health information, the applicant’s request is allowed. The applicant will be referred to by his initials in the style of proceedings and in Tribunal decisions including any past decisions.

reactivation

8Though the respondent opposes reactivation on the basis that the Application should be dismissed pursuant to s. 45.1 of the Code the sole issue that the Tribunal must consider is whether the other proceeding is concluded. In order to consider the merits of the respondent’s Request to dismiss pursuant to section 45.1 of the Code, the Application must be reactivated.

9It was not disputed that the grievance arbitration has concluded and the applicant is not appealing the decision. Therefore, it is appropriate to reactivate the Application.

Section 45.1 – request to dismiss

10The applicant grieved his termination. The arbitrator concluded after a 7 day hearing that the termination was justified as a culmination of progressive discipline and that the applicant did not fulfill his obligations under the accommodation process and had no justifiable reason to refuse the work offered by the respondent.

11Section 45.1 of the Code reads as follows:

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.

12The Tribunal has held that, in determining whether to dismiss an application pursuant to s.45.1 of the Code, it ought to consider: (1) whether there was another “proceeding” and (2) if so, whether that proceeding “appropriately dealt with the substance of the application”.

13I have no difficulty concluding that the grievance arbitration was another proceeding. See Wei v. Seneca College of Applied Arts and Technology, 2010 HRTO 2046 and Delos Santos v. Maple Lodge Farms, 2009 HRTO 1690. The question remains whether the grievance arbitration appropriately dealt with the substance of the Application.

Parties’ Submissions

14The applicant alleges the respondent harassed him and discriminated against him by failing to properly accommodate him and then terminating his employment. The applicant argues the grievance arbitration did not appropriately deal with the substance of the Application for the following reasons:

a. the Application deals with events after August 22, 2011;

b. the arbitrator’s decision does not address whether the applicant was discriminated against or accommodated to the point of undue hardship even though it finds the employer accommodated him;

c. the arbitrator did not deal with the applicant’s allegations he was harassed each time he asked to be accommodated by being threatened with termination if he did not do the work offered;

d. the applicant cannot preserve his human rights because the Union chose not to appeal the arbitrator’s decision;

e. the documents considered by the arbitrator were different than the ones he had been given; and

f. the arbitrator told him to shut his mouth when he raised something new.

15The respondent submits the grievance proceeding appropriately dealt with the substance of the Application because in arriving at the decision the applicant did not fulfill his obligations under the accommodation process and had no justifiable reason to refuse the work, the arbitrator considered:

a. whether the employer accommodated the applicant’s restrictions appropriately;

b. the allegations of harassment and discrimination by the management team;

c. the applicant’s work refusal giving rise to progressive discipline and whether the work refusal and the progressive discipline were justified; and

d. whether the termination of employment was justified.

16The respondent submits the applicant gave testimony in the grievance proceeding for 1½ days and called witnesses, including the employer’s doctor and the internal ergonomist/health and safety advisor. Extensive documentation was tendered. The applicant was represented and raised all accommodation and harassment issues at the heart of this Application.

17The respondent submits the Application raises no new issues or facts, and the applicant seeks to circumvent the appropriate review mechanism in the grievance proceeding. To allow this Application to proceed would be an abuse of process and an improper review of the arbitrator’s decision.

decision

18I find for the reasons that follow this Application should be dismissed.

19I should point out that although I requested the parties provide me with submissions on Penner v. Niagara (Regional Police Services Board), 2013 SCC 19 I am satisfied that, after reviewing them, Penner does not change the applicability of British Columbia (Workers’ Compensation Board) v. Figliola, 2011 SCC 52 to the particular circumstances of this case. This case more closely parallels Figliola because in Penner the question was whether a prior police disciplinary proceeding could preclude a subsequent civil action. The reasons the Court found it could not are not applicable in this case, for example that in Penner the applicant had no financial stake in the prior proceeding, which is not the case here.

20Figliola explains the importance of the finality of litigation and the avoidance of multiple proceedings. The Tribunal is not to stand in appeal of other decision-makers. In addition, an applicant should not be allowed to re-litigate a case. See Gomez v. Sobeys Milton Retail Support Centre, 2011 HRTO 2297. For this reason, the fact the Union chose not to appeal the arbitration decision is not a reason to allow the applicant to re-litigate the issues before the Tribunal.

21It is clear from the applicant’s arguments he disagrees with the arbitration decision, but this also is no reason to allow the applicant to re-litigate. The applicant’s allegations the arbitrator relied on altered documents or told him to shut his mouth, even if accepted, are properly matters for a judicial review of the arbitration decision, not reasons to allow relitigation of the merits by another adjudicator.

22The facts in both proceedings are the same and the applicant had ample opportunity to make submissions on all issues in the grievance proceeding. Contrary to the applicant’s assertion, both the Application and the grievance proceeding deal with matters occurring after August 22, 2011. The arbitrator’s decision concluded the applicant’s termination on November 22, 2011 was justified.

23It also is clear from the arbitrator’s decision he considered the accommodation issue, including the applicant’s work refusal. While the arbitrator did not use specifically the words “undue hardship”, by finding the employer justified in terminating the applicant, he incorporated a finding there was no violation of the Code. See Paterno v. Salvation Army, 2011 HRTO 2298 at para. 29 and Howell v. National Steel Car Limited, 2012 HRTO 1589. Unlike in Barker v. Service Employees International Union, 2010 HRTO 1921, the arbitrator considered evidence about the employer’s ability to accommodate the applicant and made a finding that the termination was just. In doing so, he considered the applicant’s medical history and made factual findings that the work offered constituted an appropriate accommodation.

24The arbitrator did not specifically refer to the Code, but the arbitrator conducted the type of analysis the Code contemplates and therefore s. 45.1 applies. See Delos Santos v. Maple Lodge Farms, 2009 HRTO 150 at paras. 22-25 and Gilinsky v. Peel District School Board, 2011 HRTO 2024 at paras. 33-34.

25I conclude for the same reasons s. 45.1 applies to the applicant’s allegations of harassment. The arbitrator considered the applicant’s harassment allegations which were what the applicant called the respondent’s threats to discipline him if he did not do the work offered. The arbitrator found these actions were disciplinary in nature and were justified in the circumstances.

26For these reasons, I find the Application must be dismissed because the substance of it was appropriately dealt with in the arbitration proceeding.