Jordan v. Ontario (Community Safety and Correctional Services), 2014 HRTO 905

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Steven Jordan

Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Minister of Community Safety and Correctional Services

Respondent

DECISION

Adjudicator: Leslie Reaume

Date: June 19, 2014

Citation: 2014 HRTO 905

Indexed as: Jordan v. Ontario (Community Safety and Correctional Services)

APPEARANCES

Steven Jordan, Applicant

Self-represented

Her Majesty the Queen in Right of Ontario as Represented by the Ministry of Community Safety and Correctional Services, Respondent

Diane Tsang, Counsel

Introduction

1This is an Application 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. The applicant alleges that he was forced to retire as a result of the employer’s failure to accommodate his disability.

2The respondent denies the applicant’s allegations.

3On its own initiative, the Tribunal issued a notice to the parties dated July 22, 2013, indicating that a preliminary hearing would be held by teleconference to deal with the issues of timeliness pursuant to section 34 of the Code. The notice also indicated that the Tribunal would hear submissions on whether the substance of the Application had been appropriately dealt with in another proceeding pursuant to section 45.1 of the Code, namely, a grievance determined by the Grievance Settlement Board (“GSB”).

4The applicant opposes dismissal. He submits that the substance of his human rights Application was not appropriately dealt with in the grievance process. The parties filed written submissions and participated in oral submissions by teleconference on November 5, 2013. Following those submissions, the hearing was adjourned for 30 days to permit the parties to file certain documents which were before the GSB.

Decision

5I am persuaded that the substance of the human rights Application was appropriately dealt with in the proceeding before the GSB within the meaning of s.45.1 of the Code. As a result of this finding, it is unnecessary for me to address the issues of timeliness raised by the Application.

BACKGROUND

6The applicant was employed with the respondent since February 26, 1990, and was a correctional officer at the Owen Sound Jail during the time period alleged in the complaint. The applicant was also a member of the Ontario Public Service Employees Union (“OPSEU”).

7On March 29, 2011, the Ministry announced the closure of the jail. The institution closed on December 5, 2011, and the team of employees that worked to decommission the jail remained until February 29, 2012.

8In April 2011, the applicant was working in a maintenance position at the jail following the settlement of several other grievances he had filed.

9There was a Memorandum of Agreement between the respondent and OPSEU in relation to the closure of the jail. The respondent alleges that in accordance with that memorandum, the applicant was given the option of working at the Central North Correction Centre (“CNCC”) or a lateral transfer to another vacancy. The applicant alleges that in July, 2011 he was given notice that he had to decide if was going to retire or transfer to CNCC.

10On July 20, 2011, the applicant met with Sal Lentini, Deputy Superintendent of Staff Services at the CNCC, in order to learn more about the accommodation process at CNCC. The applicant alleges that he was told that he would be accommodated in “the module”. The applicant alleges that he advised Mr. Lentini that sitting for long periods of time would affect his chronic pain. The applicant alleges that he was told that the module was the only place he would work apart from occasional assignments to other odd jobs.

11In July or August 2011, the applicant indicated his election to retire. The applicant alleges that he wanted to transfer to CNCC but he was concerned that his chronic pain would worsen if he worked in the module.

12On October 28, 2011, the applicant filed two grievances alleging that his disability would not be accommodated if he was transferred to the CNCC because Mr. Lentini allegedly told him that the only position available was in the module. Vice-Chair Briggs of the GSB dismissed both grievances on July 17, 2012.

13In November 2011, the Ministry posted an expression of interest outlining opportunities for employees to be on a team to decommission the jail. The applicant applied to stay on but was not chosen.

14On November 28, 2011, the applicant filed a grievance alleging that accommodated employees were not allowed to be on the team to decommission the jail. Vice-Chair Briggs dismissed this grievance on January 17, 2012.

15The preamble to both the January 17, 2012 and July 17, 2012 decisions describes the memoranda between the respondent and OPSEU which were signed in order to resolve grievances arising from the announcement in 1996 that the respondent would be closing or restructuring a number of correctional facilities over the next five years. The memoranda are referred to in the decision as MERC 1 (Ministry Employment Relations Committee), dated May 3, 2000, which outlined conditions for the correctional officers, and MERC 2, dated July 19, 2001, which provided for non-correctional officer staff. Neither of these documents was filed with the Tribunal. They are described by Vice-Chair Briggs as “lengthy and comprehensive documents that provide for the identification of vacancies and positions and the procedure for filling those positions as they become available throughout various phases of the restructuring”.

16The memoranda were without prejudice or precedent to positions either the union or the employer may take on the same issues in future discussions. The parties also recognized that disputes might arise regarding the implementation of the memoranda. Accordingly, the parties agreed that Vice-Chair Briggs would remain seized with resolving any disputes arising from the implementation of the agreement.

17Vice Chair Briggs also describes the process by which transition disputes would be dealt with:

The mediator/arbitrator shall endeavour to assist the parties to settle the grievance by mediation. If the parties are unable to settle the grievance by mediation, the mediator/arbitrator shall determine the grievance by arbitration. When determining the grievance by arbitration, the mediator/arbitrator may limit the nature and extent of the evidence and may impose such conditions as he or she considers appropriate. The mediator/arbitrator shall give a succinct decision within five (5 days) after completing proceedings, unless the parties agree otherwise.

18With respect to the process by which the applicant’s grievances would be decided, Vice-Chair Briggs stated as follows:

The transistion committee has dealt with dozens of grievances and complaints prior to the mediation/arbitration process. There have been many other grievances and issues raised before me that I have either assisted the parties to resolve or arbitrated. However, there are still a large number that have yet to be dealt with. It is because of the vast numbers of grievances that I have decided, in accordance with my jurisdiction to so determine, that grievances are to be presented by way of each party presenting a statement of the facts with accompanying submissions. Notwithstanding that some grievors might wish to attend and provide oral evidence, to date, this process has been efficient and has allowed the parties to remain relatively current with disputes that arise from the continuing transition process.

Not surprisingly, in a few instances there has been some confusion about the certain facts or simply insufficient detail has been provided. On those occasions I have directed the parties to speak again with their principles to ascertain the facts or the rationale behind the particular outstanding matter. In each case this has been done to my satisfaction.

It is essential in this process to avoid accumulating a backlog of disputes. The task of resolving these issues in a timely fashion was, from the outset, a formidable one. With ongoing changes in Ministerial boundaries and other organizational alterations, the task has lately become larger, not smaller. It is for these reasons that the process I have outlined is appropriate in these circumstances.

19Vice-Chair Briggs describes the applicant’s accommodation grievances. She indicates that she took into consideration the following issues raised by the applicant:

• The applicant wanted to go to CNCC but was concerned about whether his accommodation needs could be met;

• He went to CNCC and met with the Deputy Superintendant to discuss his concerns;

• He also asked various members of the Transition Team about whether he would be accommodated;

• After some discussions that left the grievor frustrated, he decided to retire rather than “face another fight with the employer about accommodation”;

• He was of the view that the employer should have agreed in advance that he would be accommodated given that it knew of the historical issues regarding his accommodation.

20As a result of the applicant’s submission before me that the decision of Vice-Chair Briggs was based on submissions and documents prepared by others and not the applicant himself, I adjourned the hearing for 30 days to receive and review those documents.

21The respondent provided the documents which were before Vice-Chair Briggs. The first was a set of handwritten notes. The second is a typewritten document entitled “Steven Jordan – OSJ – Transition Grievance” which includes both relevant previous information and the circumstances leading up to the grievance.

22The typewritten document includes a reference to the applicant’s allegation that he met with Mr. Lentini in an effort to determine how the employer would accommodate him at CNCC upon his transfer to the facility. Mr. Lentini is alleged to have said that realistically he would not be able to offer the applicant anything other than module work. The document makes it clear that the applicant did everything he could to get CNCC to commit to accommodating him without posting him only in modules.

23The document also includes the statement

…the employer ought to have done their duty when the grievance was filed…and explore the issue of accommodating Mr. Jordan at CNCC. He made it very clear at the stage 2 meeting that the only thing stopping him from taking the transfer to CNCC was the employer’s failure to address the issue of accommodation and his fear of a repeat of the circumstances he had faced at OSJ regarding accommodation.

24The union’s position was consistent with the applicant’s position in the Application before me that the employer failed to properly investigate the complaint and draft an appropriate accommodation plan.

25On May 6, 2013, the applicant filed his human rights Application with the Tribunal alleging discrimination in employment. The issues raised by the applicant are almost identical to those raised in his grievance, the documents submitted to Vice-Chair Briggs and the issues identified by Vice-Chair Briggs as salient to her decision.

Section 45.1

26The respondent submits that the substance of the human rights Application was appropriately dealt with by the GSB. Section 45.1 of the Code states:

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.

27The Tribunal has held that, in determining whether an Application ought to be dismissed pursuant to s.45.1 of the Code, it ought to consider: (1) whether there was another “proceeding”; and (2) if so, whether it “appropriately dealt with” the substance of the Application”.

28There is no question that the decision of Vice-Chair Briggs arises from a proceeding. The Tribunal has long accepted that a decision of the GSB constitutes a proceeding as that term is understood in section 45.1 of the Code.

29Fundamentally the applicant believes that the decision of Vice-Chair Briggs is incorrect and that in all of the circumstances, it would be unfair to bar his human rights Application based on the outcome of the GSB proceeding.

30I agree entirely with the recent Tribunal decision in K.M. v. Kodama, 2014 HRTO 526, on the relationship between issue estoppel, fairness and finality. In that decision, the Tribunal found that the fairness of using the results of another proceeding to bar a human rights Application is a principle that ought to be considered in applying s.45.1 of the Code. The Tribunal also noted that an application should not be dismissed as having been “appropriately dealt with” in another proceeding without taking into account the nature of the other proceeding, the applicant’s stake in it and the parties’ reasonable expectations about the impact of the earlier proceeding on their broader legal rights.

31In this case, the applicant’s request to proceed with his allegations before this Tribunal would be tantamount to permitting him to appeal the decision of the GSB. Whether or not I agree with the outcome is irrelevant - the issues raised by the applicant in this Application are identical to those decided by the GSB. While the applicant did not appear and testify, the grievance and the documents before the GSB make it clear that the applicant is advancing a claim, which is supported by his union, that he was forced to retire because his employer failed to accommodate his disability in the context of the closure of the Owen Sound Jail. There is no basis for permitting the applicant to re-litigate these issues before this Tribunal.

Conclusion

32For the reasons set out above, I find that the requirements of section 45.1 have been met. The substance of the Application has been appropriately dealt with in another proceeding.

33Accordingly, the Application is dismissed.