Gill v. Ontario (Children and Youth Services), 2014 HRTO 640

B E T W E E N:

Ajit Gill

Applicant

-and-

Connie Griffioen, David Worby, Doug Gilmer, Michael Oliverio, and Rise Mattson

Respondents

A N D B E T W E E N:

Ajit Gill

Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Minister of Children and Youth Services, Her Majesty the Queen in Right of Ontario as represented by the Minister of Government Services, Ann D’Hondt, Anne Stark, Connie Griffioen, Dave Worby, Doug Gilmer, Michael Oliverio, and Rise Mattson

Respondents

DECISION

Adjudicator: Paul Aterman Date: May 6, 2014 Citation: 2014 HRTO 640 Indexed as: Gill v. Ontario (Children and Youth Services)

APPEARANCES

Ajit Gill, Applicant

Self-represented

Jennifer Richards, Counsel

Introduction

1The applicant filed two Applications under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the "Code"), the first on March 10, 2010, alleging discrimination in employment because of disability. A second Application, filed on March 22, 2010, alleges reprisal.

2The applicant worked as a part-time Child and Youth Counsellor with the Ministry of Children and Youth Services. In June 2007 he injured his ankle while mowing the lawn at home. The injury did not heal and eventually he took time off work. When he returned to work his duties were modified. Over time a conflict arose between the applicant and his employer about the scheduling of his work and its impact on his recovery from the ankle injury. The dispute centres around what the applicant and his doctor thought was a suitable schedule and what work the employer, supported by its experts, thought the applicant was capable of.

3The conflict escalated when the applicant repeatedly refused to attend on his scheduled shifts. Progressive discipline was imposed and the applicant was ultimately terminated from employment for insubordination in not reporting for work. The union filed 12 grievances and the applicant also filed his Applications with the Tribunal.

4The allegations in his Applications are all incorporated in the grievances. Included in the allegations in the grievances are a claim that the employer breached the Code by failing to accommodate the applicant's disability. The allegations of reprisal are that the employer tried to pressure the applicant into adhering to its Return to Work Plan, and that this pressure was a reprisal for the applicant having asserted his human rights.

5The Applications were deferred by the Tribunal in Interim Decision, 2010 HRTO 2040, and the grievances were adjudicated by the Grievance Settlement Board ("GSB"). After 16 days of hearing spanning three years the GSB dismissed 10 of the 12 grievances and upheld the discipline imposed, including termination. In relation to two grievances the GSB found that the applicant's absence from work was justified and the applicant was to be compensated for any monetary loss flowing from those absences.

6On November 12, 2013, in Interim Decision 2013 HRTO 1881, the Tribunal ordered the Applications to be reactivated as the grievances had been adjudicated. It also ordered a preliminary hearing to deal with the respondents' request to dismiss both Applications pursuant to s.45.1 of the Code on the grounds that the GSB proceedings had appropriately dealt with the substance of the Applications.

7A teleconference hearing was held on May 5, 2014, to enable the parties to make oral submissions on this issue. For the reasons set out below, I conclude that the Applications should be dismissed.

analysis

8In 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."

9In 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.

10The applicant argues that the substance of the Applications was not appropriately dealt with, in that the GSB decision is flawed because the GSB Vice-chair showed bias and overlooked evidence in support of the applicant's position. He maintains that the union did a poor job in representing him, that although he gave evidence he was not able to present his case in the way he wished, and that he was prevented from saying the things he wanted to during the hearing. He also maintains that the Vice-chair and all counsel were communicating with one another throughout the hearing using wireless devices, but that he was excluded from this conversation that was going on in parallel with the hearing process.

11The union presented its case and called the applicant as a witness. Although he is dissatisfied with the way the union did its job before the GSB, it was the applicant who asked the union to pursue the grievances. 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.

12In this case the Code issues were addressed by the GSB, both explicitly and by implication. The GSB made an explicit finding that there was no discrimination on the basis of disability because the respondent did not fail to accommodate the applicant's disability. In relation to the alleged reprisal by the employer in pressuring the applicant to accept and adhere to its Return to Work Plan, the GSB found that the plan was reasonable and the applicant should have followed it. Implicit in this finding is a conclusion that the actions of the employer did not constitute a reprisal under the Code. As the GSB appropriately dealt with the substance of these Applications, they are dismissed.

order

13The Applications are dismissed.

Dated at Toronto, this 6th day of May, 2014.

"Signed by"

Paul Aterman

Vice-chair