Fenwick v. Workplace Safety and Insurance Board, 2014 HRTO 1435

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Alana Fenwick

Applicant

-and-

Workplace Safety and Insurance Board and Marie Shallow

Respondents

-and-

Canadian Union of Public Employees, Local 1750

Intervenor

DECISION

Adjudicator: David Muir
Date: September 25, 2014
Citation: 2014 HRTO 1435
Indexed as: Fenwick v. Workplace Safety and Insurance Board

Appearances

Alana Fenwick, applicant ) self-represented

Workplace Safety and Insurance Board and Marie Shallow ) Greg Bullen, Counsel

Canadian Union of Public Employees, Local 1750, Intervenor ) Fred Ho, representative

1This is an Application filed pursuant to section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) alleging discrimination in employment because of disability.

2In 2010 HRTO 1618 the Application was deferred pending the conclusion of a labour arbitration before the Grievance Settlement Board (“GSB”) involving the same underlying issues raised in this Application. The GSB released its decision on January 30, 2013. An application for judicial review of the decision was launched. The Divisional Court quashed the GSB’s decision in its ruling released on June 20, 2014.

3On January 9, 2014 the applicant filed a Request for Order During Proceeding requesting that her Application be reactivated. The respondents opposed this request on the ground that the applicant delayed requesting reactivation. While the Tribunal’s Rules of Procedure require a reactivation request to be made within 60 days of the date of the decision in the proceeding to which the Tribunal has deferred, in this case the applicant’s Request was filed over six months after the Divisional Court issued its decision overturning the decision of the Grievance Settlement Board.

4In the alternative the respondents argued that, should the Application be reactivated, it should be dismissed pursuant to s. 45.1, on the grounds that the substance of the Application has been appropriately dealt with in those other proceedings.

5In her Application the applicant, a probationary employee with the Workplace Safety and Insurance Board, alleges that she was perceived to be a good employee until she disclosed to her manager that she was a person with a disability. The applicant alleges that her manager began to performance manage her from that point on apparently in the applicant’s view to ultimately dismissing her during her probationary period. The respondent denies these allegations.

6Subsequent to the applicant’s dismissal a grievance was filed and a multi-day hearing was held at the GSB. In his decision the arbitrator dismissed the applicant’s allegation of Code-related discrimination but also found for other reasons that the dismissal was unfair. The respondent sought judicial review of the decision which was quashed. In addition to overturning the decision to the extent it was in the applicant’s favour the Court opined that there was no indication of Code based discrimination in the manner in which the applicant was treated.

7In a Case Assessment Direction issued on February 6, 2014 the Tribunal directed that a hearing be held by telephone conference call to hear the parties’ submissions on the applicant’s Request and the respondents responses to it. A telephone hearing was held on September 19, 2014. All parties participated.

8The Application is dismissed both because it was filed beyond the 60 day time period prescribed by the Tribunal’s Rules and, pursuant to section 45.1 of the Code because the substance of the Application has been appropriately dealt with.

The Delay Issue

9As indicated above the Divisional Court’s decision was released in June 2013 and the applicant’s Request to Reactivate was filed in January 2014, well beyond the time frame prescribed in Rule 14. Rule 14.4 of the Tribunal’s Rules of Procedure provides as follows:

14.4 Where an Application was deferred pending the outcome of another legal proceeding, a request to proceed under Rule 14.3 must be filed no later than 60 days after the conclusion of the other proceeding, must set out the date the other legal proceeding concluded and include a copy of the decision or order in the other proceeding, if any.

10The applicant argues that she was unaware of the 60 day time limit prescribed in Rule 14.4. She also argued that after receiving the Decision of the Divisional Court she decided that she would get on with her life and appears to have done so with some success. She stated however that in December 2013 she felt compelled to explore what further could be done and contacted the Human Right Legal Support Centre for advice and then filed this Request.

11In my view it would be inappropriate to waive the delay incurred in seeking reactivation of this case. The Tribunal has generally applied the same factors which it considers when determining whether an untimely Application can proceed and I would follow that line of cases. See Marc-Ali v. Graham, 2012 HRTO 502. In short it falls on the applicant to initially establish a good faith explanation for the delay. If there is a good faith explanation for the delay then the applicant must show that no party will experience substantial prejudice because of the delay.

12As the Tribunal has noted on many occasions good faith means more than the absence of bad faith. There is no evidence of bad faith here. On the contrary the applicant did what was probably appropriate in the circumstances and determined to get on with her life. But she changed her mind after several months and decided in December to explore her options to vindicate the wrong she believed had been done to her and to ensure that it happened to no one else. This in my view is not a good faith explanation for the delay. Accordingly I would dismiss the Request and consequently the Application for that reason.

The Section 45.1 Issue

13The Application must also be dismissed pursuant to section 45.1 of the Code because the substance of it has been appropriately dealt with in the grievance arbitration and subsequent decision of the Divisional Court.

14Section 45.1 of the Code which provides:

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.

15The Tribunal has interpreted section 45.1 as contemplating a two-step analysis. First, was there a prior proceeding that dealt with the issues raised in the Application? If the answer to that question is yes, then the second stage of the analysis is whether or not the substance of the Application has been appropriately dealt with. See Campbell v. Toronto District School Board, 2008 HRTO 62.

16The Decision of the Supreme Court of Canada, in British Columbia (Workers’ Compensation Board) v. Figliola (“Figliola”), 2011 SCC 52, 2011 S.C.C. 52, in interpreting language from British Columbia’s Human Rights Code, which is very similar to section 45.1 of Ontario’s Code, has further clarified that the Tribunal has no authority to scrutinize the procedural or substantive correctness of the determination in the other proceeding and confirmed that the section is intended to prevent the re-litigation of issues that have been determined in the other proceeding. The Tribunal, in a number of decisions, has confirmed that the Supreme Court’s analysis of the British Columbia statute is applicable to section 45.1. See also Penner v. Niagara (Regional Police Services Board) (“Penner”), 2013 SCC 52, Claybourn v. Toronto Police Services Board, 2013 HRTO 1298 and Gomez v. Sobeys Milton Retail Support Centre, 2011 HRTO 2297.

17In its decision in Figliola the Supreme Court articulated the following test to consider when determining whether or not it is appropriate to exercise the discretion under s. 45.1 of the Code, a paras 35 to 38 :

These are the principles which underlie s. 27(1)(f). Singly and together, they are a rebuke to the theory that access to justice means serial access to multiple forums, or that more adjudication necessarily means more justice.

Read as a whole, s. 27(1)(f) does not codify the actual doctrines or their technical explications, it embraces their underlying principles in pursuit of finality, fairness, and the integrity of the justice system by preventing unnecessary inconsistency, multiplicity and delay. That means the Tribunal should be guided less by precise doctrinal catechisms and more by the goals of the fairness of finality in decision-making and the avoidance of the relitigation of issues already decided by a decision-maker with the authority to resolve them. Justice is enhanced by protecting the expectation that parties will not be subjected to the relitigation in a different forum of matters they thought had been conclusively resolved. Forum shopping for a different and better result can be dressed up in many attractive adjectives, but fairness is not among them.

Relying on these underlying principles leads to the Tribunal asking itself whether there was concurrent jurisdiction to decide human rights issues; whether the previously decided legal issue was essentially the same as what is being complained of to the Tribunal; and whether there was an opportunity for the complainants or their privies to know the case to be met and have the chance to meet it, regardless of how closely the previous process procedurally mirrored the one the Tribunal prefers or uses itself. All of these questions go to determining whether the substance of a complaint has been “appropriately dealt with”. At the end of the day, it is really a question of whether it makes sense to expend public and private resources on the relitigation of what is essentially the same dispute.

What I do not see s. 27(1)(f) as representing, is a statutory invitation either to “judicially review” another tribunal’s decision, or to reconsider a legitimately decided issue in order to explore whether it might yield a different outcome. The section is oriented instead towards creating territorial respect among neighbouring tribunals, including respect for their right to have their own vertical lines of review protected from lateral adjudicative poaching. When an adjudicative body decides an issue within its jurisdiction, it and the parties who participated in the process are entitled to assume that, subject to appellate or judicial review, its decision will not only be final, it will be treated as such by other adjudicative bodies. The procedural or substantive correctness of the previous proceeding is not meant to be bait for another tribunal with a concurrent mandate.

18In my view the circumstances of this case fall squarely within the Figliola analysis as modified by Penner, above and subsequent Decisions of the Tribunal. There is no dispute that the issues raised in this Application were squarely raised before the arbitrator and determined by him. The applicant suggests that the union may not have pressed the Code issues as vigorously as some others. Even assuming that this were true it is not material to the analysis. It is clear that the issue was raised and dealt with by the arbitrator who rejected the claim of Code discrimination.

19The applicant was understandably dismayed when the favourable decision of the arbitrator (on non-Code grounds) was overturned by the Divisional Court but that is not a reason to allow her to re-litigate the same issues here. Having regard to the test established by the Supreme Court in Figliola, above, I find that: the GSB arbitration was a proceeding for the purposes of s. 45.1 of the Code; the arbitrator was a decision maker with concurrent jurisdiction over the issues raised by the applicant in both proceedings; and the arbitration proceeding (and subsequent judicial review) appropriately dealt with the issues raised in this Application within the meaning of s. 45.1. The applicant knew the case she had to meet, and she had an opportunity to make submissions on the issues at hand. It is important to note that the applicant made her choice of forum in which to have her claims determined. She could have not filed a grievance or withdrew it prior to the arbitration beginning. As the Supreme Court stated in their reasons above, more adjudication does not necessarily mean more justice. There is no reason raised in the material or in the applicant’s submissions that would justify the re-litigation of the issues raised by the applicant and determined in the GSB arbitration and subsequent judicial review.

20For all of these reasons the Application is dismissed.