Roselle Beausoleil v. Ontario (Community Safety and Correctional Services), 2014 HRTO 123

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Roselle Beausoleil Applicant

-and-

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

-and-

Ontario Public Service Employees’ Union Intervenor

RECONSIDERATION DECISION

Adjudicator: Naomi Overend Date: January 28, 2014 Citation: 2014 HRTO 123 Indexed as: Beausoleil v. Ontario (Community Safety and Correctional Services)

WRITTEN SUBMISSIONS

Roselle Beausoleil, Applicant Marianne Craig, Counsel

Ontario (Community Safety and Correctional Services), Respondent Marnie Corbold, Counsel

OPSEU, Intervenor Caroline Jones, Counsel

Introduction

1The respondent seeks reconsideration of Interim Decision, 2013 HRTO 1553 (“the Interim Decision”), in which the Tribunal refused to dismiss the Application under s. 45.1 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The Ontario Public Service Employees’ Union (“OPSEU”) did not participate at the preliminary hearing, nor did it seek intervenor status until after the Interim Decision was released, although it was given notice of the Application. Subsequent to the respondent filing its Reconsideration Request, OPSEU filed a Request to Intervene. At the same time, OPSEU also filed a Response to the Request for Reconsideration and its own Request for Reconsideration. OPSEU’s three documents were accompanied by a single Schedule “A,” which formed OPSEU’s written submissions with respect to the intervention and reconsideration requests.

Decision and Analysis

Intervention

3The applicant is a member of OPSEU, and over the course of her employment with the respondent, OPSEU has filed several grievances on her behalf, including one relating to the facts of the Application before this Tribunal. It is the mediation-arbitration of that grievance (and ten others) that led to the respondent’s request to have this Application dismissed under s. 45.1.

4The Tribunal has found on numerous occasions that a union nearly always has an interest in an application brought by a member of one of its bargaining units. Where the parties do not oppose the intervention request, a bargaining agent, absent exceptional circumstances, will be granted intervention status when it so requests. See Upchurch v. MTI Mechanical Trade Industries, 2010 HRTO 1323. However, in this case, the applicant opposes OPSEU’s intervention request and so I must specifically determine whether its involvement would be helpful.

5The applicant argues that OPSEU’s interest in this proceeding is

(…) not the redressing of human rights violations by the employer vis-à-vis Ms. Beausoleil, but protecting its own abilities to deal with the employer – to obtain tradeoffs and side deals.

One can surmise from OPSEU’s submissions that its interest in participating at this stage is to overturn the Interim Decision allowing the Application to proceed. In that it seeks the dismissal of this Application, the applicant is correct that its interest is with respect to its processes and not the applicant’s rights. However, the Tribunal does not require a union to be in agreement with the applicant as a precondition to granting intervenor status.

6It is regrettable that OPSEU chose not to intervene at an earlier stage, when it could have supplemented the factual record, and made full legal argument on the application of s. 45.1 to the facts of this case. Having said that, I am reluctant to disregard OPSEU’s interest in the outcome of this reconsideration and its helpful submissions on the issues raised by the Interim Decision. Moreover, despite the retroactive focus of its submissions, it is conceivable that OPSEU might have a strong interest in the remedial outcome of the hearing on the merits.

7Accordingly, OPSEU is granted leave to intervene from this point forward. With respect to this reconsideration, it is appropriate for OPSEU to make submissions in support of the respondent’s Request. However, given that it was not a party to the earlier preliminary proceedings, when the issue under reconsideration was argued, it is not appropriate for OPSEU to file a separate Request for Reconsideration. In any event, its Request is duplicative of the Request made by the respondent.

8With respect to any future involvement, the scope of OPSEU’s intervention will be determined by the adjudicator hearing the matter should it chose to participate at that stage.

Reconsideration

9Under section 45.7 of the Code, the Tribunal may, at the request of a party or on its own initiative, reconsider its decisions in accordance with Tribunal’s Rules.

45.7(1) Any party to a proceeding before the Tribunal may request that the Tribunal reconsider its decision in accordance with the Tribunal rules.

(2) Upon request under subsection (1) or on its own motion, the Tribunal may reconsider its decision in accordance with its rules.

Is it a “final” decision?

10The Tribunal has issued Rules of Procedure, which govern reconsideration requests, as well as a Practice Direction to provide guidance to the community on the Tribunal’s exercise of its reconsideration powers (Practice Direction on Reconsideration, January 2008, amended June 2010). Rule 26.1 of the Tribunal’s Rules of Procedure and the Practice Direction provide that reconsideration may be requested in relation to a “final decision” of the Tribunal. As stated in Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34 at para. 41, a “final decision” is one that disposes of some or all of the central issues in the application as between the parties.

11Generally speaking, a decision to dismiss an application under s. 45.1 would be a final decision; a decision declining to dismiss an application under s. 45.1 would not be “final” in that it does not purport to finally dispose of the issues raised by an application (namely, the merits of the allegations and any remedy sought).

12OPSEU, however, asserts at para. 24 of its submissions that my Interim Decision on s. 45.1 is a “final” decision in that it disposes of a central issue in the litigation (namely, liability):

The Interim Decision sets out a scope for litigation limited to the adequacy of the remedy awarded by the Vice-Chair [in the mediation-arbitration]. The Crown has already been found, by the Vice-Chair, to be in breach of the Collective Agreement’s prohibition on discrimination. As a result, by determining that s. 45.1 does not apply to the instant matter, the HRTO has effectively positioned itself to consider only the issue of whether or not the remedy awarded by the Vice-Chair (removal of the letter of counsel), is appropriate. [Emphasis added.]

13In fact, contrary to this submission, at no point did the Grievance Settlement Board (“GSB”) Vice-Chair determining the grievances find the respondent Crown to be breach of the Collective Agreement’s prohibition on discrimination. At its highest, the GSB Vice-Chair’s decision states that some of the applicant’s grievances “may have some merit [emphasis added],” but does not even specify which of the grievances fall into this category. There is no reference to the Collective Agreement’s prohibition on discrimination.

14Because it would contradict the decision on its face, it would be inappropriate to infer that the GSB Vice-Chair concluded the discrimination grievance did have merit, as OPSEU and the respondent urge me to do. While I appreciate that the GSB Vice-Chair made a remedial order, I am not prepared to infer that he must have made a positive finding that the Collective Agreement had been breached in order to exercise his remedial jurisdiction. Moreover, even if I were prepared to do that, I am not prepared, for reasons discussed at greater length in the Interim Decision, to infer that he made a particular finding with respect to the grievance at issue in this Application (as opposed to one of the other ten grievances).

15The Tribunal, in Nowlan v. World Meats Inc., 2013 HRTO 747, dealt with an analogous situation involving an Employment Standard’s Officer’s decision. At paragraph 18, the Tribunal states:

In my view, it would not be appropriate to assume that the officer reached conclusions about these issues that are not explicit in his decision. I agree with the applicant that the Tribunal ought not to infer that the substance of the human rights Application was considered much less “dealt with”, if there is nothing in the ESO’s decision itself to lead to that conclusion.

16For these reasons, I disagree with OPSEU’s submissions that, in effect, by dismissing the respondent’s request to dismiss under s. 45.1, I have disposed of a central issue. The Interim Decision is not a “final decision” on either the question of liability or remedy and, on that basis, it is not appropriate for me to consider the respondent’s reconsideration request pursuant to Rule 26.1.

Should the Tribunal reconsider the Interim Decision on its own motion?

17Under s. 45.7(2) of the Code, as well as the Tribunal’s Rules, the Tribunal may, “on its own motion,” reconsider its decisions. For the reasons discussed below, I decline to exercise my discretion to reconsider the Interim Decision.

18In Rule 26.5, the Tribunal has established the test for reconsideration, which would likewise apply to its own decisions:

26.5 A Request for Reconsideration will not be granted unless the Tribunal is satisfied that

(a) there are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier; or

(b) the party seeking reconsideration was entitled to but, through no fault of its own, did not receive notice of the proceeding or a hearing; or

(c) the decision or order which is the subject of the reconsideration request is in conflict with established jurisprudence or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance; or

(d) other factors exist that, in the opinion of the Tribunal, outweigh the public interest in the finality of Tribunal decisions.

Both the respondent and OPSEU submit that Rules 26.5 (c) and (d) apply.

19The Tribunal’s Practice Direction on Reconsideration begins with the following statements:

Reconsideration is a discretionary remedy; there is no right to have a decision reconsidered by the Tribunal. Generally, the Tribunal will only reconsider a decision where it finds that there are compelling and extraordinary circumstances for doing so and where these circumstances outweigh the public interest in finality of orders and decisions.

Reconsideration is not an appeal or an opportunity for a party to repair deficiencies in the presentation of its case.

20I would note at this point, that the Rule 26.4 does not require a party served with a Request for Reconsideration to file a response unless directed by the Tribunal. I did not find it necessary to direct the applicant to file a response, and so I am assessing the arguments raised by the respondent and intervenor without any submissions on these points by the applicant.

21Paragraph 9 of the respondent’s submissions state:

… the Tribunal did not give appropriate weight or consideration to the benefits of the mutually agreed to “Local Mediation-Arbitration Protocol” (Protocol) and the potentially detrimental impact this Interim Decision could have on the Protocol.

22The submissions that follow contain alleged facts about the history of the Protocol, which was not part of the evidentiary record before me. The applicant had no opportunity to test in cross-examination or contradict these alleged facts in the preliminary hearing. It is inappropriate to supplement the record at the reconsideration stage, given that the information was known to the respondent at the time of the hearing. As noted above, reconsideration is not an opportunity for a party to repair deficiencies (perceived or otherwise) in the presentation of its case.

23Likewise, it is inappropriate to speculate, as the respondent does, that the Interim decision “may result in reluctance on its part to engage” in the process outlined in the Protocol, or on the otherwise “chilling effect” the Interim Decision may have. There was no evidence before me that arbitrators using the mediation-arbitration process set out in the Protocol routinely decline to: (1) make positive findings with respect to whether the Collective Agreement (specifically, the anti-discrimination provision) was breached by the employer; or (2) specify which of the grievances (where there is more than one) they find to have “merit” or not. Moreover, there was no evidence before me that making such findings would impose an overwhelming burden on arbitrators operating under the Protocol.

24In any event, the relevant considerations for the Tribunal in determining whether a human rights Application should be dismissed under s. 45.1 are, of course, those identified in the statute, namely whether the substance of the Application was “appropriately dealt with” in another proceeding. The Tribunal has no power to dismiss applications within its jurisdiction where the criteria in s. 45.1 are not met, because of the potential impact on a dispute resolution protocol that the intervenor and employer have worked out between them.

25OPSEU’s submissions further assert that the Interim Decision conflicts with the Supreme Court of Canada’s decisions in British Columbia (Workers’ Compensation Board) v. Figliola, 2011 SCC 52 (“Figliola”), and the Tribunal’s jurisprudence that arose following the release of Figliola. The jurisprudence cited by OPSEU addresses the issue of whether s. 45.1 should apply to a grievance proceeding.

26However, in each of the earlier Tribunal decisions cited by OPSEU, the arbitrator made a finding with respect to the grievance. I have been directed to no other decision by this Tribunal on s. 45.1 in which the arbitrator in the earlier proceeding found that some of grievances have “questionable merit” and “others may have some merit,” rather than making a finding that the Collective Agreement either had, or had not, been breached. It is upon this critical difference that the Interim Decision is founded.

27OPSEU also submits that I misapplied the Supreme Court’s decision in Penner v. Niagara (Regional Police Services Board), 2013 SCC 19 (“Penner”), and this Tribunal’s decision in Claybourn v. Toronto Police Services Board, 2013 HRTO 1298 (“Claybourn”). Specifically, because I state that it would be “unfair” to rely on the GSB Vice-Chair’s decision, OPSEU submits that I am, in effect, sitting in judgment of the earlier proceeding.

28This appears to be based on a narrow reading of Penner, which identifies two types of unfairness, the first type relating to the fairness of the earlier proceeding. OPSEU asserts at para. 43 of its submissions that the “second type of unfairness” identified by the majority in Penner is restricted to “where there is a significant difference between the purposes, processes or stakes involved in the two proceedings.” In fact the majority in Penner states at para. 42:

However, even if the prior proceeding was conducted fairly and properly, having regard to its purpose, injustice may arise from using the results to preclude the subsequent proceedings. This may occur, for example, where there is a significant difference between the purposes, processes or stakes involved in the two proceedings. [Emphasis added.]

29There is nothing in the language of the Interim Decision that can be interpreted as a conclusion on my part that the prior proceeding was somehow “unfair” to the applicant. Rather, consistent with the body of my reasoning in the Interim Decision, by making reference to it being “unfair to use the results of that process to preclude the subsequent claim,” I am expressing my reluctance to infer from the Decision of the GSB Vice-Chair (as the respondent – and now OPSEU – urge me to do) that he decided the substance of the Application that has been filed with this Tribunal.

30As noted in the Interim Decision, the substance of the human rights Application is the allegation that the respondent discriminated against the applicant because of her sex by disciplining her more harshly than her male colleagues for an incident involving an inmate. The arbitration Decision does not refer to this issue, either directly or by inference. Accordingly, there is no basis upon which I might find that the GSB Vice-Chair appropriately dealt with the substance of the human rights Application within the meaning of s. 45.1 of the Code.

Remaining Issues

31In the midst of the reconsideration process, the applicant brought a Request for an Order During Proceedings to amend her Application. The respondent sought relief from filing a Response to the Request on the basis that the reconsideration might render the issue moot. The respondent has 15 days from the date of this Reconsideration Decision to file its Response.

32Moreover, the Tribunal has set dates for the hearing of this Application in May 2014. In the Notice of Hearing, dated November 6, 2013, the parties were directed pursuant to Rule 16.1 to provide to each other a list and copy of their arguably relevant documents by November 27, 2013. The applicant has complied with this direction, but the respondent has not. On November 15, 2013, the respondent wrote a letter to the Tribunal asking it to rescind the Notice of Hearing or, in the alternative, relieving it from the obligation to provide these documents until after the Tribunal had addressed the outstanding requests.

33The applicant brought a second Request, dated December 19, 2013, asking the Tribunal to strike the Response because of the respondent’s failure to comply with its disclosure obligations. The respondent is not required to file a Response to that Request to strike, but is directed to comply with its Rule 16.1 obligations by February 18, 2014.

ORDER

34In summary, I have made the following orders/directions:

a. OPSEU is granted leave to intervene. The scope of OPSEU’s intervention will be determined by the adjudicator hearing the matter should it chose to participate at any future hearing dates.

b. The Request for Reconsideration filed by the respondent is denied.

c. The respondent is directed to file a Response (Form 11) to the Applicant’s Request to amend her Application within 15 days of the date of this decision.

d. The respondent is relieved from filing a Response to the applicant’s Request to strike its Response, but is directed to comply with its Rule 16.1 obligations by February 18, 2014.