Zuber Bhol v. Coca-Cola Refreshments Canada Company, 2014 HRTO 96

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Zuber Bhol Applicant

-and-

Coca-Cola Refreshments Canada Company Iowanna Chis, Cem Erim, Mike LeClair Respondents

DECISION

Adjudicator: Daniel Randazzo Date: January 22, 2014 Citation: 2014 HRTO 96 Indexed as: Bhol v. Coca-Cola Refreshments Canada Company

APPEARANCES

Zuber Bhol, Applicant ) Self-represented Coca-Cola Refreshments Canada Company, ) Mathias Link, Counsel Mike LeClair and Cem Erim, Respondents )

1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”), on June 16, 2011 alleging discrimination with respect to employment on the basis of disability and record of offences. The Application was deferred in 2012 HRTO 105 pending the conclusion of the arbitration proceeding. The arbitration proceeding was concluded with a decision of the arbitrator and the applicant sought reactivation which was granted in 2013 HRTO 942.

2By Case Assessment Direction (“CAD”) dated September 19, 2013, the Tribunal directed that a Summary Hearing be held in this matter by teleconference. It stated as follows at paragraph 10:

The Registrar will schedule a half-day summary hearing be teleconference. The applicant will proceed first during this summary hearing. The applicant shall make argument about why the Application should not be dismissed pursuant to 45.1 of the Code, or because some or all of his allegations are out of time or because they have no reasonable prospect of success. No witnesses will give evidence during the summary hearing.

3A summary hearing was held via teleconference on December 12, 2013. The Tribunal heard submissions from the applicant and from counsel representing the corporate respondent, Coca-Cola Refreshments Canada Company (“Coca-Cola”) and individual respondents, Mike LeClair (“LeClair”) and Cem Erim (“Erim”). The respondent, Iowanna Chis (“Chis”), did not participate in the conference call.

4I have concluded that the allegations relating to the applicant’s discharge have been appropriately dealt with in another proceeding. I have also concluded that the remaining allegations are dismissed for delay.

5The applicant commenced employment with Coca-Cola on April 16, 1986. Throughout his employment the applicant has been represented by the Canadian Auto Workers, Local 385. In September 2007 the applicant was accused of stealing approximately one hundred and forty-three dollars ($143.00) from his employer. He was terminated as a result of this conduct but was reinstated pursuant to a last chance agreement.

6Upon his return to work, the applicant alleges that he was the subject of various discriminatory conduct.

7The applicant alleges that, on a date prior to June 24, 2009, the respondent LeClair, discriminated against the applicant by harassing him in the workplace. The harassing conduct includes allegations that LeClair would instruct the applicant to work harder or faster when in fact he was working at a normal pace. It is also alleged that LeClair would not allow the applicant to continue taking smoke breaks while other employees were allowed.

8The applicant alleges that on June 24, 2009, the respondent Chis, discriminated against the applicant on the basis of race, ancestry, place of origin and ethnic origin by telling the applicant that he should go back to India.

9The applicant alleges that on April 28, 2010 the respondent Erim discriminated against him on the basis of disability by, after receiving the applicant’s Functional Assessment Form (“FAF”) shouted at the applicant that he was not injured, that he simply did not want to work and that he was lazy.

10On August 13, 2010, the applicant was discharged, for the second time, from his employment with Coca-Cola. The applicant alleges that his discharge was an act of discrimination and relies on this act, his discharge, as the final act of discrimination in a series of acts which commenced with the 2009 allegations attributable to LeClair.

11Without going into great detail, the applicant was fired on August 13, 2010 for sleeping on the job. This conduct was viewed as disciplinable conduct and a violation of the applicant’s last chance agreement. The applicant grieved his discharge and the circumstances of the discharge were put before Arbitrator Raymond. The applicant’s Application to the Tribunal was deferred pending the outcome of the Raymond hearing. On December 4, 2012 Arbitrator Raymond found the discharge to be proper and dismissed the applicant’s grievance. Arbitrator Raymond found that the applicant had fallen asleep on the job and had engaged in disciplinable conduct.

DECISION

12The Summary Hearing was held to determine:

1. If the application should be dismissed, in whole or in part, pursuant to section 45.1 of the Code,

2. If the application should be dismissed because some or all of the allegations are out of time, and

3. If the application should be dismissed because there is not reasonable prospect of success.

SECTION 45.1

13Section 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.

14There are two parts to the analysis of s. 45.1. First I must determine whether there has been another “proceeding”. If that part of the test is satisfied, I must then decide whether that proceeding “appropriately dealt with the substance of the Application.”

15It is well established that the grievance and arbitration process is a “proceeding” for the purposes of s. 45.1 of the Code. See for example, Delos Santos v. Maple Lodge Farms, (“Delos Santos”) 2009 HRTO 1690 at para. 20 and Paterno v. Salvation Army, (“Paterno”) 2011 HRTO 2298 at para. 22.

16The key issue in dispute in this Application is whether the arbitration proceeding appropriately dealt with the substance of the Application. The applicant argued that he believed the termination was an act of discrimination and that Arbitrator Raymond’s decision only dealt with the termination and did not raise or deal with the allegations of discrimination. The respondents argued that Arbitrator Raymond’s decision upheld the discharge and as such the discharge cannot be a violation of the Code. The respondents noted, that although Arbitrator Raymond’s decision did not specifically reference the Code, the applicant’s explanation for his conduct on the day of discharge was that he was not sleeping and that he had to lie down to stretch due to his disability. The respondents argue the issues of disability were addressed in Arbitrator Raymond’s decision and that all of the documentation relating to the applicant’s disability was produced and reviewed by Arbitrator Raymond.

17The respondents relied on Delos Santos and Paterno, above and Howell v. National Steel Car Limited, (“Howell”) 2012 HRTO 1589 in support of their position that the Application should be dismissed pursuant to s. 45.1 of the Code.

18In British Columbia (Worker’s Compensation Board) v. Figliola, (“Figliola”) 2011 SCC 52, [2011] 3 S.C.R. 422 the Supreme Court of Canada considered provisions similar to s. 45.1 in the British Columbia Human Rights Act. The Supreme Court of Canada states at paras. 34 to 38 in Figliola:

At their heart, the foregoing doctrines exist to prevent unfairness by preventing “abuse of the decision-making process” (Danyluk, at para. 20; see also Garland, at para. 72, and Toronto (City), at para. 37). Their common underlying principles can be summarized as follows:

• It is in the interests of the public and the parties that the finality of a decision can be relied on (Danyluk, at para. 18; Boucher, at para. 35).

• Respect for the finality of a judicial or administrative decision increases fairness and the integrity of the courts, administrative tribunals and the administration of justice; on the other hand, relitigation of issues that have been previously decided in an appropriate forum may undermine confidence in this fairness and integrity by creating inconsistent results and unnecessarily duplicative proceedings (Toronto (City), at paras. 38 and 51).

• The method of challenging the validity or correctness of a judicial or administrative decision should be through the appeal or judicial review mechanisms that are intended by the legislature (Boucher, at para. 35; Danyluk, at para. 74).

• Parties should not circumvent the appropriate review mechanism by using other forums to challenge a judicial or administrative decision (TeleZone,at para. 61; Boucher, at para. 35; Garland, at para. 72).

• Avoiding unnecessary relitigation avoids an unnecessary expenditure of resources (Toronto (City), at paras. 37 and 51).

These are the principles which underlie s. 27(1)(f). Singly and together, they are a rebuke to the theory that access to justice means serial access to multiple forums, or that more adjudication necessarily means more justice.

Read as a whole, s. 27(1)(f) does not codify the actual doctrines or their technical explications, it embraces their underlying principles in pursuit of finality, fairness, and the integrity of the justice system by preventing unnecessary inconsistency, multiplicity and delay. That means the Tribunal should be guided less by precise doctrinal catechisms and more by the goals of the fairness of finality in decision-making and the avoidance of the relitigation of issues already decided by a decision-maker with the authority to resolve them. Justice is enhanced by protecting the expectation that parties will not be subjected to the relitigation in a different forum of matters they thought had been conclusively resolved. Forum shopping for a different and better result can be dressed up in many attractive adjectives, but fairness is not among them.

Relying on these underlying principles leads to the Tribunal asking itself whether there was concurrent jurisdiction to decide human rights issues; whether the previously decided legal issue was essentially the same as what is being complained of to the Tribunal; and whether there was an opportunity for the complainants or their privies to know the case to be met and have the chance to meet it, regardless of how closely the previous process procedurally mirrored the one the Tribunal prefers or uses itself. All of these questions go to determining whether the substance of a complaint has been “appropriately dealt with”. At the end of the day, it is really a question of whether it makes sense to expend public and private resources on the relitigation of what is essentially the same dispute.

What I do not see s. 27(1)(f) as representing is a statutory invitation either to “judicially review” another tribunal’s decision, or to reconsider a legitimately decided issue in order to explore whether it might yield a different outcome. The section is oriented instead towards creating territorial respect among neighbouring tribunals, including respect for their right to have their own vertical lines of review protected from lateral adjudicative poaching. When an adjudicative body decides an issue within its jurisdiction, it and the parties who participated in the process are entitled to assume that, subject to appellate or judicial review, its decision will not only be final, it will be treated as such by other adjudicative bodies. The procedural or substantive correctness of the previous proceeding is not meant to be bait for another tribunal with a concurrent mandate

19In Gomez v. Sobeys Milton Retail Support Centre, 2011 HRTO 2297 at paras. 22-25 the Tribunal found that the Figliola analysis is applicable to the interpretation of s. 45.1 of the Code.

20I have reviewed the decision of Arbitrator Raymond, in upholding the discharge Arbitrator Raymond found that the applicant had engaged in disciplinable conduct. In coming to this finding Arbitrator Raymond referenced the grievor’s injuries of which Coca-Cola was aware and the fact that the grievor was on modified duties and, as a result of his injuries, was required to occasionally stretch. Taking these, as well as other facts, into consideration, Arbitrator Raymond concluded that the applicant was sleeping while at work. Based upon my review of Arbitrator Raymond’s decision I find that the issues surrounding the applicant`s discharge have been appropriately dealt with in another proceeding and therefore dismiss the Application as it relates to the applicant’s discharge. Having made this finding, I note that the Raymond Decision does not deal with the allegations of discrimination as they relate to the individual respondents (Chis, LeClair and Erim). The substance of the remaining allegations are not dismissed pursuant to section 45.1 but are dealt with below.

21Before commencing my analysis with respect to any remaining allegations that have not been appropriately dealt with in another proceeding, I want to address the applicant’s argument, that Arbitrator Raymond’s decision did not reference the Code and did not specifically refer to the alleged violations of the Code.

22I do not accept the applicant’s argument that s. 45.1 does not apply because Arbitrator Raymond’s decision did not deal with or raise allegations of discrimination. In Noble v. York University, (“Noble”) 2009 HRTO 1201, Hansen v. Workplace Safety and Insurance Board, (“Hansen”) 2012 HRTO 608 and in Howell, above the Tribunal has found that s.45.1 could be applied in circumstances in which the other proceeding determined the substance of the application without making any findings that the Code had been breached. I agree with the reasoning in Noble, Hansen and Howell that s.45.1 should not be so narrowly construed as argued by the applicant.

23Both the Application and the grievance before Arbitrator Raymond pertain to the Applicant’s termination. Arbitrator Raymond dealt with the discharge and determined that it was proper in all the circumstances. Arbitrator Raymond had the jurisdiction to interpret and apply the Code and to award human rights remedies. As such, I find that the applicant had the opportunity to make any allegations that his termination was contrary to the Code during the arbitration proceeding which was dealing with the same facts and the legality of his termination. The applicant did not provide any reasonable explanation why the allegations that the discharge was a violation of the Code were not, as he suggests, put before Arbitrator Raymond. To permit the Application, as it relates to the applicant’s discharge, to proceed would deny the parties finality and would result in relitigation.

SECTION 34

Delay

24Section 34 (1) and (2) of the Code reads as follows:

34(1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series.

(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

25The applicant argued that the allegations were a series of events culminating in his discharge. In the event that his discharge could not form part of a series of incidents within the meaning of section 34(1)(b), the applicant was asked to address the delay in filing with respect to the allegations relating to the individual respondents and to address the issue of prejudice that may have been caused to the respondents by the applicant’s delay in filing.

26The applicant stated that he had spoken to his union representative who advised that he should wait before filing with respect to the allegations against the individual respondents as there may be consequences if he filed. The applicant did not provide details or an explanation to what was meant by “consequences”. The applicant also explained that he was “occupied” in trying to deal with the grievance/arbitration proceedings and that he was busy dealing with his termination.

27The respondents argued that the termination, in light of Arbitrator Raymond’s decision, could not form part of a series of events and relied upon Chappell v. Securitas Canada Limited, 2012 HRTO 874 in support of their argument. With respect to the issue of delay, the respondents argued that the applicant has not provided any cogent or satisfactory reason to explain the delay. The respondents argued that each incident was a separate incident and did not form part of a series of events. The respondents relied on Chappell, above in support of their argument that for events to form a series of events there must be a nexus between the incidents. They cannot be discreet separate incidents. The respondents also argue that where there are gaps of more than a year between events and where the events relate to different grounds under the Code, the events cannot form a series of events within the meaning of section 34(1)(b).

28The respondents argued that the allegations as they relate to LeClair occurred in June 2009 and relate to race and place of origin. They argue that there is a delay of more than 23 months between the date of the occurrence and the date of filing (June 14, 2011). With respect to allegations as they relate to Chis, the respondents submit that the alleged discriminatory acts occurred on June 24, 2009 – again, approximately 23 months prior to the filing of the Application. As with the allegations made against LeClair, these allegations relate to race and place of origin. With respect to the allegations as they relate to Erim, the respondents point out that there is a delay of approximately 13.5 months between the date of the alleged incident (April 28, 2010) and the date of filing (June 14, 2011). The allegations made against Erim relate to discrimination on the grounds of disability.

29The respondents argue that in each case the delay is excessive and the applicant has not provided an explanation that would satisfy the onus of good faith. The respondents also argue that the applicant raised the allegations as they related to Chis with the corporate respondent. The respondents argue that this matter was fully and finally dealt with by the corporate respondent. Finally, the respondents argue that the excessive delay has caused the respondents prejudice.

30The Application was filed on June 14, 2011. I accept the reasoning of Chappell, above and find that an allegation that has been dismissed cannot form part of a series of events. As such the allegations relating to the applicant’s termination, which are the only timely allegations and which have been dismissed pursuant to section 45.1, cannot form part of a series of events.

31With respect to the remaining incidents, I find that each incident is a discrete incident and involve different facts. Furthermore, as between the third incident, that relating to the respondent Erim, the allegations relate to discrimination based upon disability while the incidents that relate to the respondents Chis and LeClair relate to discrimination based upon race and place of origin. I accept the reasoning in Chappell, above and the reasoning in Baisa v. Skills for Change, 2010 HRTO 1621 and Polihronakos v. Mississauga (City), 2010 HRTO 1433 and find that these incidents do not form a series of incidents within the meaning of section 34(1)(b).

32The delay in filing with respect to the allegations as they relate to the respondents LeClair and Chis, which is approximately 11 months beyond the one year limit, is excessive. The delay in filing with respect to the allegations as they relate to the respondent Erim, which is approximately six weeks beyond the one year limit, is also excessive. The applicant argued that he relied on advice from his Union and that he was busy dealing with his discharge as reasons for his failure to file within the statutory time limits. I note that the applicant raised the allegations as they relate to the respondent Chis internally. It is clear that the applicant understood his rights and was not reluctant to assert his rights. In these circumstances, I cannot conclude that the delay incurred was incurred in good faith. Accordingly, the remaining allegations are dismissed.

33Having found that the delay was not incurred in good faith, I do not have to address the issue of whether the respondents would suffer substantial prejudice.

REASONABLE PROSPECT OF SUCCESS

34In light of my finding that the issues surrounding the applicant’s discharge have been appropriately dealt with in another proceeding and are therefore dismissed pursuant to section 45.1, and my finding that the remaining allegations are dismissed for delay, I do not have to address the issue of whether there was a reasonable prospect of success.

ORDER

35For all the above reasons, the Application is dismissed.