Lubinovic v. Workplace Safety and Insurance Board, 2014 HRTO 1694

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Zineta Lubinovic

Applicant

-and-

Workplace Safety and Insurance Board, Susan Granger, Louise Shannon and Kelly Bethune

Respondents

-and-

Canadian Union of Public Employees and its Local 1750

Intervenor

DECISION

Adjudicator: Naomi Overend

Date: November 24, 2014

Citation: 2014 HRTO 1694

Indexed as: Lubinovic v. Workplace Safety and Insurance Board

APPEARANCES

Zineta Lubinovic, Applicant

Paulette Haynes, Counsel

Workplace Safety and Insurance Board, Susan Granger, Louise Shannon and Kelly Bethune, Respondents

Greg Bullen, Counsel

Canadian Union of Public Employees and its Local 1750, Intervenor

Gavin Leeb, Counsel

1This Application, filed on April 9, 2013, alleges discrimination with respect to employment on the grounds of disability and reprisal contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2In the workplace, the applicant is represented by the Canadian Union of Public Employees and its Local 1750 (“Local 1750”), which is an intervenor in this process. Local 1750 filed grievances on the applicant’s behalf, two of which proceeded to arbitration before the Grievance Settlement Board (“GSB”).

3On consent, the Tribunal deferred the Application pending the resolution of a grievance proceeding. It was reactivated after the GSB issued its decision on her grievances.

4The hearing before Vice-Chair Brown of the GSB lasted 13 days between May 2013 and March 2014. Vice-Chair Brown issued a decision on March 25, 2014 in which he reinstated the applicant to her position and awarded her a percentage of her lost wages for the time she was off work.

5The respondents had opposed the re-activation on the basis that the GSB decision addressed all of the applicant’s allegations. In their written submissions on this issue, they also requested, in the alternative, that the Application be dismissed pursuant to section 45.1 of the Code. The applicant submitted that the GSB decision determined a number of allegations from her Application, but not all of them, and that those that were not addressed by the GSB decision should continue before the Tribunal.

6The Tribunal set up a preliminary hearing by teleconference to hear oral submissions on the issue of whether the Application should be dismissed pursuant to section 45.1 of the Code. No evidence was led at this hearing and I have relied on the Application, the GSB decision, and the submissions (written and oral) of the parties and intervenor in coming to my decision on this issue.

decision and analysis

7Section 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.

8There is no question that a hearing before the Grievance Settlement Board is a “proceeding” within the meaning of s. 45.1. The issue, therefore, is whether that proceeding “appropriately dealt with the substance” of this Application.

9Counsel for the applicant takes the position that because the arbitrator did not specifically address (or inadequately addressed) the following four allegations in his decision, that he cannot be said to have addressed the “substance” of her Application:

1. The allegation that between May and August 2010, when the applicant was being trained to do her new job, the respondents refused to accommodate her by providing her with a “sit/stand” workstation;

2. The applicant was not allowed to work at the Hamilton office on days when she was receiving treatment in Hamilton (where the applicant also resided), but still required to attend the Kitchener office;

3. One of the individual respondents had requested that the surgeon assessing the applicant in July 2011 change the words “work restrictions” to “work accommodations” and “permanent restrictions” to “permanent modifications” in his report, which he did; and

4. The respondents repeatedly threatened to terminate the applicant’s job if she did not return to work during the period from February 20 to March 12, 2012.

10A review of the GSB decision shows that, indeed, the first three issues were not specifically addressed by the Vice-Chair and the last issue is not addressed in the same level of detail as it is in the Application. I would note, however, that the applicant does not allege that Local 1750 failed to raise these issues or that she did not testify about them at the arbitration hearing, as the respondent asserts. Indeed, the decision reveals that the applicant was on the stand for a lengthy period (the Vice-Chair notes she was in cross-examination for four days), and that hundreds of pages of documents were entered as exhibits at the arbitration.

11It is clear that there was a complex web of allegations over the time period spanning from May 2010 to March 2012 in which the applicant alleges that the respondents’ efforts to accommodate her were unsuitable. This is the same time span that was before the GSB, as is clear from the decision of Vice-Chair Brown, in which he discusses what he believes to be the salient issues during this period. The fact that each one of these allegations is not described and analyzed in the GSB decision is not surprising given the volume of material.

12While not every specific allegation raised by the applicant in her Application was individually addressed in the Decision, Vice-Chair Brown clearly addresses – and accepts – the applicant’s global allegations that her employer (the organizational respondent) failed to accommodate her disabilities and ultimately terminated her employment because of disability. At para 95 of his decision, he states:

…the employer bore the primary obligation to initiate a discussion about returning the grievor to work in some fashion that would not lead to further injury. The employer could have proposed some other form of modified work. Instead, the employer did nothing before terminating her. Such inaction was itself a violation of the duty to accommodate. This contravention on the employer’s part was the primary cause of the grievor’s absence. … Morover, the employer breached its duty to accommodate under the Code by terminating her under these circumstances.

13This finding is preceded by a lengthy discussion of the human rights aspects of the grievances (as opposed to the violation of the Collective Agreement), starting at para. 73 of the decision.

14The test under s. 45.1 is not whether every allegation is addressed, but whether the substance of the Application was addressed in the other proceeding. In ascertaining the substance of an Application, as opposed to the myriad of detailed allegations, it is helpful to look at the requested remedy. In her Application, the applicant’s request for remedy includes lost wages and reinstatement, which the Vice-Chair ordered (although perhaps not to the full satisfaction of the applicant).

15It also includes a request for damages for “mental anguish” and for injury to her dignity, hurt feelings and self-respect. Since the amendment to the Code, the Tribunal does not award damages for mental anguish separately from the injury to dignity (etc.). In any event, Local 1750 sought such damages under s.45(2) of the Code in the arbitration, which the Vice-Chair specifically considered at para. 99 and rejected as inappropriate in light of the applicant’s role in the failure of the accommodation process.

16It is not appropriate for this Tribunal to sit in review of the Decision of Vice-Chair Brown. On the face of his reasons, he took jurisdiction over the applicant’s human rights concerns arising from her employment relationship with the named respondents. It is clear from his reasons also that he conducted a proceeding in which the applicant participated and at which evidence was led over multiple days concerning her alleged human rights violations.

17Counsel for the applicant points out that her client has the right under the direct access model, to make an Application to the Tribunal in order to access her individual rights. While this is true, s. 45.1 also makes it clear that, at some point, applicants often have to choose which process they pursue in order to vindicate those rights. As noted by the Supreme Court of Canada in Danyluk v. Ainsworth Technologies Inc. , 2001 SCC 44 (“Danyluk”), at para. 18:

The law…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 to one bite at the cherry…

18I appreciate that in Danyluk and Penner v. Niagara (Regional Police Services Board), 2013 SCC 19, the Supreme Court also states that court retains the discretion to not apply the principle of finality where to do so would result in unfairness to a party. However, the applicant has not established that dismissing her Application to this Tribunal would result in unfairness.

19This Application is dismissed pursuant to s. 45.1 of the Code.