Gallina v. Ontario (Child and Youth Services), 2014 HRTO 390

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Louis Gallina Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Minister of Child and Youth Services Respondent

INTERIM DECISION

Adjudicator: Douglas Sanderson Date: March 19, 2014 Citation: 2014 HRTO 390 Indexed as: Gallina v. Ontario (Child and Youth Services)

APPEARANCES

Louis Gallina, Applicant Self-represented

Her Majesty the Queen in Right of Ontario as represented by the Minister of Child and Youth Services, Respondent Omar Shahab, Counsel

Ontario Public Service Employees Union, Interested Party Peter Harding, Counsel

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

Background

2The applicant was employed as a Youth Services Officer until the respondent dismissed him on June 15, 2009. The applicant’s union, the Ontario Public Service Employees Union (the “union”) grieved the dismissal and the matter proceeded to a hearing before the Grievance Settlement Board (“GSB”). In a decision dated February 24, 2011, the GSB ordered the respondent to return the applicant to a substantially equivalent position that did not involve direct contact with residents in a facility or clients, as those terms are defined in the Crown Employees Collective Bargaining Act, S.O. 1993, c. 38. The presiding GSB Vice-Chair retained jurisdiction over all matters involving the interpretation and implementation of the February 24, 2011 decision.

3Unfortunately, implementation of the decision did not go smoothly. The respondent offered the applicant a position, but the union and the applicant did not agree that the position was appropriate for several reasons. One of the reasons was that the requirements of the position were outside of the applicant’s disability-related restrictions. Accordingly, the union eventually requested that the GSB reconvene to address the unresolved implementation issues, including whether the position was appropriate in light of the applicant’s physical restrictions.

4The applicant filed this Application on May 28, 2012, while implementation of the GSB decision remained outstanding. In the Application, the applicant alleged that the position the respondent offered him after the GSB decision does not accommodate his physical restrictions, identified by the Workplace Safety and Insurance Board, and does not provide the same remuneration and advancement opportunities.

5In Gallina v. Ontario (Minister of Child and Youth Services), 2012 HRTO 1784, the Tribunal deferred this Application pending the outcome of the proceedings before the GSB. On May 30, 2013, the applicant requested reactivation of the deferred Application. The respondent opposed reactivation and submitted that the matter before the GSB was resolved on March 14, 2013 by Minutes of Settlement, including a release in favour of the respondent, executed by the applicant, the union and the respondent. Accordingly, the respondent argued that, if reactivated, the Application should be dismissed as an abuse of process or pursuant to section 45.1 of the Code because the substance of the Application has been dealt with in another proceeding.

6In a Case Assessment Direction dated September 12, 2013, the Tribunal noted that the applicant did not comply with Rules 14.3 and 14.4 of the Tribunal's Rules of Procedure (the "Rules") relating to the reactivation of deferred proceedings. The Tribunal directed a preliminary hearing by teleconference to address whether the Tribunal should reactivate the Application in light of the applicant's failure to comply with Rules 14.3 and 14.4 and the delay in filing the request for reactivation. The Tribunal also directed the parties to address the issues of whether the Application should be dismissed as an abuse of process or pursuant to section 45.1. The Tribunal held the hearing by teleconference on December 5, 2013.

Submissions

7The respondent volunteered to proceed first during the preliminary hearing and the applicant and union raised no objection. The respondent submitted that following the decision from the GSB, a dispute arose about the implementation of the award, including compensation issues and whether the position offered to the applicant was appropriate in light of his physical restrictions. The respondent submitted that the respondent, union and applicant settled these issues in Minutes of Settlement, which included release language explicitly referring to the Code. The respondent referred me to the release language found at paragraph 16 of the Minutes of Settlement which state as follows:

The Grievor and Union hereby releases and forever discharges the Crown in Right of Ontario and the Employer, its servants, agents and directors of and from all actions, causes of action, grievances, claims and demands of every nature and kind arising out of, issues arising from Vice-Chair Fisher's Decision dated February 24, 2011, including but not limited to all claims under the Employer's Workplace Discrimination and Harassment Policy, the Ontario Human Rights Code (sic), the Public Service of Ontario Act, and the Occupational Health and Safety Act, the Labour Relations Act, the Employment Standards Act and the common law;

The respondent submitted that permitting the applicant to proceed in these circumstances would amount to an abuse of process and noted that the Tribunal has come to this conclusion in several of its decisions.

8The respondent submitted that the GSB process concluded on March 14, 2013 when the parties executed the Minutes of Settlement, but the applicant did not file the request for reactivation until May 30, 2013. The respondent submitted that the request was 17 days late, as rule 14.4 requires an applicant to file a request for reactivation no later than 60 days after the conclusion of the other proceeding. The respondent submitted that, pursuant to Tribunal jurisprudence, the applicant must first establish a good-faith explanation for the delay before considering whether the respondent would suffer prejudice if the Application proceeds.

9The applicant submitted that the delay in filing a request for reactivation was in good faith. The applicant stated that after the GSB matter was settled he was in contact with the Tribunal and prepared his submissions to request reactivation. The applicant submitted that he presented the request to the Tribunal in a timely manner, but was informed by the Case Processing Officer ("CPO") that he did not send his materials to the respondent's identified representative and therefore he had to resubmit his documentation. The applicant submitted that he was married in early May 2013 and was away on his honeymoon from May 6 to May 24, 2013. Upon his return, the applicant stated that he realized that his request was not complete or not received by the Tribunal and completed it as quickly as possible. The applicant also stated that he was not aware of the time limits for reactivation, but worked hard to get his request in front of the Tribunal.

10The applicant submitted that the Application includes allegations of harassment and discrimination that he needs the Tribunal to address and which were not addressed in the Minutes of Settlement.

11In Reply, the respondent acknowledged that there had been an issue with the applicant delivering his documents to someone other than counsel for the respondent and that some back-and-forth did occur. Nonetheless, the respondent submitted to the applicant was late in filing a request for reactivation and did not comply with Rule 14.

Analysis and decision

12Rule 14.4 states as follows:

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.

13The Tribunal has stated that the principles to apply in extending the time limit for requesting reactivation should be similar to those applied regarding the time limit for filing Applications under section 34 of the Code. For example in Marc-Ali v. Graham, 2012 HRTO 502, the Tribunal stated as follows at paragraphs 19-20:

The delay in filing the reactivation Request is approximately two and a half months. The Rules require that a reactivation request be filed within 60 days of the conclusion of the other proceeding. The Tribunal has the discretion to vary time limits set out in its Rules “to facilitate an accessible process and to ensure the fair, just and expeditious resolution of the merits of the matter before it” (Rule 1.1). In Baker v. Kingston Hospital, 2009 HRTO 2079 (“Baker”), at para. 6, the Tribunal stated that there “must be a good reason” to waive the time limits set out in the Rules. In addition, the length of the delay may be a factor in determining the appropriateness of extending the time limit. See, for example, Vonella v. Blake Jarrett and Company, 2010 HRTO 2158 (“Vonella”), where the delay was only two days.

The principles to apply in extending time limits under the Rules should be similar to the principles established under section 34 of the Code: has the delay in meeting the time limits in the Rules been incurred in good faith (in Baker, this requirement was worded slightly differently, but I see no significant difference between “good faith” and “a good reason”); and will any substantial prejudice to the respondents result from extending the time limit. The length of the delay is a factor in assessing the potential prejudice to the respondents. In addition, the Tribunal should be mindful of Rule 1.1 which sets out the need to facilitate an accessible process and to ensure the fair, just and expeditious resolution of the merits of an Application.

14The materials filed with the applicant's request to reactivate include an e-mail exchange with one of the Tribunal’s CPOs. These documents indicate that the applicant did attempt to file the request within the 60 day time limit, but did not comply with the Tribunal's rules regarding delivery of documents to other parties. In an e-mail message dated May 1, 2013, the Tribunal specifically directed the applicant to deliver his request to the respondent's counsel, Mr. Shahab. The Tribunal repeated this direction to the applicant in an e-mail message dated May 7, 2013, as the applicant had purported to deliver the documents to one of the respondent’s managers. The respondent's submissions appear to confirm this. The applicant left for his honeymoon on May 6, 2013 and did not finally submit the request in accordance with the Tribunal’s rules until May 30, 2013.

15In my view, the applicant could have easily filed the request to reactivate within the 60 day time limit if he exercised better diligence and followed the Tribunals directions. However, the applicant did make efforts to file the request in a timely manner, but was delayed by his inability to comply with the Tribunal’s rules regarding delivery of documents. Further, in cases where the Tribunal has refused reactivation for failure to meet the time limits set out in Rule 14.4, the delay has been significant i.e., several months. In this case, the delay was short – only 17 days – more akin to the situation in Vonella, above. The respondent also did not identify any prejudice should the Application proceed. Accordingly, the request to reactivate the Application is granted.

Abuse of process

16Having said that, I find that, with one exception, allowing the Application to proceed would amount to an abuse of process.

17The Minutes of Settlement resolved the implementation issues arising out of the GSB decision reinstating the applicant to employment with the respondent. There is no dispute that one of those issues was whether the respondent offered the applicant a substantially equivalent position. Part of the applicant's objection to the position was that it did not meet his physical restrictions. The applicant also objected to the remuneration and advancement opportunities available to him in the position offered by the respondent. These are the central allegations of his Application to the Tribunal. The Tribunal has found that allowing an applicant to proceed with allegations settled in an arbitration proceeding would amount to an abuse of process – even in the absence of a release in favour of the respondent. See Messiah v. Snap-on Tools of Canada Ltd., 2010 HRTO 1151 and Avila v. Toronto Zoo, 2010 HRTO 1989.

18In this case, the Minutes of Settlement do contain a release, which specifically releases the respondent from claims under the Code. The Code does not explicitly bar Applications where an applicant has executed a release in favour of the respondents. See Bielman v. Casino Niagara, 2009 HRTO 123. Section 23(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, however, provides that the Tribunal may make such orders or give such direction in proceedings before it as it considers proper to prevent abuse of its processes. The Tribunal has found on a number of occasions that filing a human rights Application after executing a full and final release can amount to an abuse of process and dismissed the Applications in question. In assessing whether it would be an abuse of process to allow an Application to proceed in the face of a release, the Tribunal has considered factors such as whether the applicant understood the release, whether the applicant received consideration for it, and whether there is evidence of duress. See Douse v. Hallmark Canada, 2009 HRTO 1254, Dieter v. Transcontinental Printing Inc., 2012 HRTO 2171, Perricone v. Fabco Plastics Wholesale, 2010 HRTO 1655 and Shams v. Genivar Inc., 2012 HRTO 163. The applicant made no submissions touching on these factors or any other factor that would indicate that he should not be bound by the bargain he reached with the respondent. In these circumstances, allowing the applicant to re-litigate issues surrounding the implementation of the GSB award would in my view be an abuse of process.

19The issues arising out of the implementation of the GSB decision were the central allegations in the applicant's Application. They were not, however, the only allegations. The applicant responded to Question A29 in the application form regarding workplace harassment on prohibited grounds of discrimination. The applicant states in response to Question A29 as follows: "During GSB hearing was made fun of and laughed at by ministry due to eye disability". This allegation was not before the GSB Vice-Chair and was not addressed in the Minutes of Settlement, including the release, which is restricted to issues arising out of the GSB decision of February 24, 2011.

20The Application shall proceed regarding the applicant's harassment allegation only. The applicant has, however, provided very little detail about this allegation and in my view it is appropriate to require him to provide particulars about it (i.e., who harassed the applicant, what happened/ what was said and where and when the incident(s) occurred).

Order

21The Tribunal orders as follows:

1. The request to reactivate the Application is granted;
2. The Application is dismissed with the exception of the allegation of harassment set out in response to Question A29 of the Application;
3. Within 21 days of the date of this Interim Decision, the applicant shall file with the Tribunal and deliver to the respondent particulars, as described in paragraph 20, above, regarding the harassment allegation. The Tribunal may dismiss the Application as abandoned should the applicant fail to file and deliver the particulars as directed;
4. Within 21 days of receiving the particulars of the harassment allegation, the respondent shall file an Amended Response regarding this allegation; and,
5. Within 14 days of receiving the respondent’s Amended Response, the applicant may file a Reply.

22I am not seized.