Bhattacherjee v. SSP Canada Inc., 2014 HRTO 1514

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Deb Kumar Bhattacherjee

Applicant

-and-

SSP Canada Inc.

Respondent

DECISION

Adjudicator: Keith Brennenstuhl

Date: October 9, 2014

Citation: 2014 HRTO 1514

Indexed as: Bhattacherjee v. SSP Canada Inc.

APPEARANCES

Deb Kumar Bhattacherjee, Applicant

Self-represented

SSP Canada Inc., Respondent

Laura Cassiani, Counsel

Introduction

1This is an application filed on January 21, 2014, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”). The applicant alleges that he was discriminated against on the ground of disability in the context of the termination of his employment with the respondent.

2The respondent has requested early dismissal of the Application on the basis that it would be an abuse of process of the Tribunal’s process to hear the application.

3A hearing by telephone conference call was held on September 19, 2014 to deal with the respondent’s Request to dismiss the Application.

BACKGROUND

4The applicant was employed by the respondent in the position of cook from April 16, 2004 to June 19, 2013. During his employment the applicant was disciplined many times for food-safety infractions. His union represented him in various grievance proceedings.

5The applicant was ultimately terminated when he was observed picking up a rasher of bacon off the floor and placing it in the service tray. The union grieved this termination and the grievance was resolved through mediation. It resulted in a settlement. On August 26, 2013 the parties signed Minutes of Settlement. In exchange for the payment of 8 weeks’ salary and other non-monetary consideration, the respondent agreed to the “full and final settlement of all outstanding issues of this and any other grievances filed.”

6In the Minutes of Settlement the applicant agreed that he signed the Minutes freely and without duress and that he had been fairly represented by the union.

ANALYSIS

7Section 23(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 as amended 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.

8Regarding the doctrine of abuse of process, the Supreme Court of Canada in Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44 stated:

The law rightly seeks a finality to litigation. To advance that objective, it requires litigants to put their best foot forward to establish the truth of their allegations when first called upon to do so. A litigant, to use the vernacular, is only entitled one bite at the cherry… An issue once decided, should not generally be re-litigated to the benefit of a losing party and the harassment of the winner. A person should only be vexed once in the same cause. Duplicative litigation, potential inconsistent results, undue cost, and inconclusive proceedings are to be avoided.

9In my view, the termination grievance in the present case raises the same factual issues that are raised in the Application. The grievance was settled. The applicant derived benefits from this settlement. Nevertheless, notwithstanding this settlement, the applicant now wants to put the same factual issues before this Tribunal submitting that the settlement does not address his human rights concerns. Having carefully reviewed the settlement and grievance documents as well as the current allegations, I disagree. While the release could have been worded more clearly, it is none-the-less clear to me that the settlement reached in the final grievance was intended to finally dispose of “all outstanding issues” arising from and related to the applicant’s employment and termination from employment. The situation here is similar to that in Twyne v. Dominion Colour Corp., 2013 HRTO 1769.

10In my view, it would constitute an abuse of process for the applicant to come before this Tribunal with the same factual issues, in essence, to relitigate the decision made by the respondent to terminate the applicant. In addressing a similar matter, the Tribunal states in Paterno v. Salvation Army, 2011 HRTO 2298:

The applicant had a choice. He could have foregone the benefits that he has as an employee under a collective agreement –including just cause protection, the grievance procedure and representation by union counsel – by not pursuing a grievance or arbitration. He then could have proceeded at the Tribunal with his human rights Applications without them being affected by the arbitrator’s determination. Having chosen to take the benefits of the collective agreement and the grievance process, however, an applicant must accept the consequences of that choice for a subsequent human rights proceeding, which is that the issues may be dealt with in the grievance and arbitration process that she or he has commenced. An applicant has a choice where to proceed, but does not have the option to require an employer to litigate the same issues twice.

11I find it would be an abuse of the Tribunal’s process to hear this Application. The administration of justice requires judicial economy, finality and consistency in judicial processes. In my view, it would be contrary to these principles to allow the Application to proceed when there was a grievance procedure dealing with the same facts that give rise to the applicant’s human rights complaint.

12For these reasons the Application is dismissed.