Bower v. Toronto Community Housing Corporation, 2014 HRTO 542

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Donald Bower

Applicant

-and-

Toronto Community Housing Corp., Pat Milana, Paulette Duplessie, Maurice Brenner and Steve Flores

Respondents

-and-

Canadian Union of Public Employees, Local 416

Intervenor

DECISION

Adjudicator: Paul Aterman

Date: April 15, 2014

Citation: 2014 HRTO 542

Indexed as: Bower v. Toronto Community Housing Corporation

APPEARANCES

Donald Bower, Applicant

Barbara Adamson, Counsel

Toronto Community Housing Corp., Pat Milana, Paulette Duplessie, Maurice Brenner and Steve Flores, Respondents

Christina Henderin, Counsel

Canadian Union of Public Employees, Local 416, Intervenor

Devon Paul, Representative

background

1The applicant filed an Application on February 3, 2009 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the “Code”) alleging discrimination in employment because of disability. Reprisal is also alleged.

2The applicant worked for the corporate respondent as a superintendent in a community housing unit. The corporate respondent suspended him for five days on the grounds of poor work performance and failure to comply with a return to work program after he was away from work for medical reasons. After the suspension he returned to work, but then was again absent for medical reasons, this time for a number of months. While he was off work he filed this Application, alleging discrimination on the basis of disability and harassment by the personal respondents.

3The applicant returned to work, but was injured in an accident that resulted in a concussion in August of 2009. He had to take time off work to recover. The corporate respondent conducted video surveillance of the applicant in the period that he was off work and determined that he was being untruthful about the nature of his injury. As a result it terminated his employment. The applicant alleges that this was a reprisal.

4The applicant’s union grieved both the suspension and the dismissal. This Application was deferred until the grievances were determined by an arbitrator.

5After 13 days of hearing the arbitrator issued a lengthy decision on December 17, 2012. The parties to the grievance led evidence relating to all of allegations raised by the applicant in this Application. They made detailed arguments on whether the Code had been breached. It is perfectly clear that the arbitrator took jurisdiction over the issues raised in this Application. He states as follows at p.1:

The parties agreed that the dismissal grievance would be heard in the normal way. However, the suspension grievance and the Human Rights Code complaint raised similar facts and the parties agreed to proceed in the following manner. The evidence in those matters was presented by way of written particulars setting out each party’s evidence in detail. Limited oral evidence was called to supplement the written particulars and address important areas of disagreement. The particulars were thorough and the process proved efficient.

The parties explicitly agreed that I would resolve the Human Rights Code complaint against both the Employer and the four named individual employees. With the written particulars and the supplementary oral evidence that complaint was fully and extensively addressed in the evidence and in the parties’ submissions.

6After ten pages of analysis of all of the allegations of discrimination and reprisal made by the applicant, the arbitrator determines that, while the employer conducted a proper investigation of the applicant’s allegations, it failed to inform the applicant of the results of that investigation. The arbitrator states at p.65:

I find only that the Employer failed in its duty under the Code. Nothing of substance flowed from that breach of the Code. Damages would not be appropriate for this breach. As for a remedy, I simply make the following declaration:

The Employer breached its duty under the Human Rights Code by reason of its failure to advise the grievor of the result of its internal investigation into his complaint.

7He concludes at pp.66-67 as follows:

In summary, I have found no violation of the Human Rights Code by Pat Milana, Maurice Brenner, Steve Flores or Paulette Duplessie. The complaint against the four of them is therefore dismissed. I have also found that most of the concerns raised against the Employer have not been proven. However, I have found that the Employer did not complete a reasonable investigation of the grievor’s complaint in that the Employer failed to report the results of its investigation to the grievor. As for remedy for that breach I have made a declaration of the breach. The remainder of the Human Rights Code complaint against the Employer is dismissed.

8The arbitrator then upholds both the 5 day suspension and the dismissal.

9On August 6, 2013, the applicant filed a request that the Application be reactivated. In response the respondents oppose reactivation on the grounds that the applicant did not request reactivation in a timely manner. In the alternative they request that the Application be dismissed pursuant to s. 45.1. of the Code. They say that the arbitration award appropriately dealt with the substance of the Application.

10A teleconference hearing was held on April 14, 2014 to enable the parties to make oral submissions on these issues. For the reasons set out below I conclude that, regardless of the timing of the applicant’s request to reactivate, the Application should be dismissed because the arbitration award appropriately dealt with the substance of the Application.

analysis

11In s.45.1 the Code provides that 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.”

12In Paterno v. Salvation Army, 2011 HRTO 2298 at paras. 26-29 the Tribunal examines the relationship of this provision to proceedings where a labour arbitrator has found just cause for termination. It concludes that even in cases where human rights issues are not explicitly argued before an arbitrator, an arbitrator’s finding that upholds a termination implicitly includes a finding that there was no violation of the Code. This is because an arbitrator has a duty to interpret and apply the Code.

13In this case the Code issues were explicitly addressed in great detail by the arbitrator. His award provides an extensive account and analysis of the events that are central to this Application, including the circumstances surrounding the applicant’s injury and how the parties conducted themselves up to the point of termination.

14While he finds that the corporate respondent breached the Code by failing to inform the applicant of the results of its investigation, the arbitrator also considers the appropriate remedy and determines that nothing more is warranted than making a declaration of that breach. In upholding termination the arbitrator explicitly addresses all of the allegations of discrimination and reprisal and, with the exception of the finding I have just noted, he dismisses all of them. In doing so he appropriately dealt with the substance of this Application.

15The applicant argues that the award did not deal appropriately with the substance of his Application because he was not a party to the arbitration hearing. The union presented its case and called him as a witness, but he did not have the authority to present the case as he saw fit. He was dissatisfied by the way the union did its job before the arbitrator. However, it was the applicant who asked the union to pursue this grievance. In making that choice, he was also agreeing to let the union decide how best to present the case. He has to accept the consequences of making that choice. One of the consequences is that he cannot oblige the employer to litigate the same issues twice. As the arbitrator appropriately dealt with the substance of this Application, it is dismissed.

order

16The Application is dismissed.