HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Yansuo Wang
Applicant
-and-
Hilton Toronto
Respondent
INTERIM DECISION
Adjudicator: Mark Hart
Indexed as: Wang v. Hilton Toronto
APPEARANCES
Yansuo Wang, Applicant
Jean-Alexandre De Bousquet, Counsel
Hilton Toronto, Respondent
Matthew Curtis, Counsel
1This is an Application dated November 26, 2014 alleging discrimination with respect to employment because of race and ethnic origin contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).
2The purpose of this Interim Decision is to address two issues: (1) the respondent’s request for dismissal of the Application pursuant to s. 45.1 of the Code on the basis that the substance of the Application already has been appropriately dealt with through the grievance process; and (2) the applicant’s request to amend his Application in order to clarify the nature of his allegations of discrimination and to seek monetary compensation.
3By Case Assessment Direction (“CAD”) dated March 6, 2015, the Tribunal directed that a preliminary hearing be held by teleconference in order to hear the parties’ oral submissions and any evidence relevant to the preliminary issues.
4The preliminary hearing was heard by teleconference on June 11, 2015. In advance of the preliminary hearing, both parties filed witness statements and sought to call oral evidence. Having reviewed the witness statements filed by the parties, it was my view that the facts relevant to the preliminary issues to be determined were not in dispute in any material way, and that hearing oral evidence was therefore not necessary. I invited submissions from the parties regarding what material facts they felt needed to be established through oral evidence. Having heard and considered the parties’ submissions, I determined it was not necessary to hear oral evidence and declined to do so.
Background
5The applicant commenced employment with the respondent as a part-time steward in January 2011. As a steward, the applicant was responsible for operating a dishwasher and delivering clean dishes, glassware and cutlery to designated areas. The applicant primarily worked in the respondent’s main kitchen.
6On May 8, 2014, the applicant was scheduled to work a four hour shift beginning at 1:00 p.m. Because of the short time period of his shift, the applicant was not entitled to a meal break. The applicant says that he has a lengthy commute from his home to the respondent’s workplace. On the day in question, the applicant says that he arrived early for his shift, but had not eaten.
7At 1:30 p.m., the respondent’s chef received a complaint that the applicant had been seen eating food in the banquet kitchen without authorization from his manager. This is a violation of the respondent’s Food Policy. The applicant says that he went to the banquet kitchen to check its dishwasher, because the one in the main kitchen was too slow. He says that when he was in the banquet kitchen, he saw that a banquet had ended and the employees were dumping left-over food in the garbage. He says that he took some food that was going to be dumped, and commenced eating it because he was very hungry. He says that after a few bites, he was told by the chef not to eat in the kitchen, and he stopped eating immediately and apologized.
8Shortly thereafter, the applicant was called to a meeting in the respondent’s Human Resources department where he was questioned about what he had done. At this meeting, the applicant acknowledged eating food in the kitchen. The respondent says that the applicant also acknowledged that he was aware of the respondent’s Food Policy. The applicant is a member of a union, UNITE HERE, Local 75, and was accompanied at this meeting by a union steward. The applicant was sent home after this meeting.
9The applicant did not work for the respondent following the May 8, 2014 incident, until he was called in to attend another meeting on May 21, 2014. The respondent says that at the meeting on May 21, 2014, the applicant was given another opportunity to explain the events of May 8, 2014. Once again, the union steward was present at the May 21, 2014 meeting.
10On May 21, 2014, the respondent determined that the applicant had violated its Food Policy and had taken an unauthorized break during his work shift on May 8, 2014. The respondent says that, as the applicant acknowledged that he was aware of the Food Policy, it regarded the applicant’s actions as a flagrant violation of this policy. Accordingly, it terminated the applicant’s employment for cause effective May 21, 2014. The basis for the termination decision is set out in a letter from the respondent’s Human Resources director to the applicant dated May 22, 2014.
11The applicant’s union filed a grievance on his behalf on May 21, 2014, alleging that the termination represented unjust discipline and an abuse of management rights and seeking reinstatement, together with lost wages and benefits.
12The grievance proceeded to a Step 2 meeting with management on June 6, 2014. At the Step 2 meeting, the applicant was accompanied by his union steward and a union staff representative. There is a dispute between the parties as to whether the Step 2 meeting lasted five minutes, as alleged by the applicant, or fifteen minutes, as alleged by the respondent. It is not necessary for me to resolve this dispute in order to decide the issues before me at this stage of the proceeding.
13On June 12, 2014, the respondent’s Human Resources director issued a letter stating that, further to the Step 2 meeting, the respondent maintained that the correct decision was made in terminating the applicant’s employment and therefore the grievance was denied.
14By e-mail correspondence dated June 17, 2014, the union notified the respondent that it was referring the applicant’s termination grievance to arbitration. However, the union has not taken any steps to proceed further with the grievance arbitration process. In the material before me, I have a letter from the union to the applicant dated November 11, 2014, stating that the union had made a determination that it was reasonably unlikely that the grievance would succeed at arbitration. As a result, the letter notified the applicant that the union would not be advancing his termination grievance to arbitration.
Section 45.1 of the Code
15Section 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.
16Section 45.1 requires a two-part analysis: (1) whether there was another “proceeding” and, if so, (2) whether it “appropriately dealt with the substance of the Application”: see Campbell v. Toronto District School Board, 2008 HRTO 62.
17The respondent submits that the grievance process under the collective agreement is a “proceeding” within the meaning of s. 45.1 of the Code, and that the decision of its Human Resources Director on June 12, 2014 following the Step 2 grievance meeting appropriately dealt with the substance of the Application, such that the Application should be dismissed.
18The applicant submits that a decision by the respondent following a Step 2 grievance meeting is not a “proceeding” within the meaning of s. 45.1 of the Code, primarily on the basis that the respondent was making its own decision as to whether it had violated the collective agreement and was not impartial. In the alternative, the applicant further submits that the decision did not appropriately deal with the substance of the Application, as it did not address the applicant’s allegation of discrimination. There is no dispute between the parties that the discrimination allegation was not raised by the applicant or the union during the grievance process. The applicant further submits that s. 45.1 of the Code should not be applied to dismiss the Application on the basis that it would be unfair to deprive the applicant of his rights under the Code, relying on this Tribunal’s decision in Claybourn v. Toronto Police Services Board, 2013 HRTO 1298 upheld in Ontario (Community Safety and Correctional Services) v. De Lottinville, 2015 ONSC 3085 (Div. Ct.).
19In my view, it is not necessary to address the applicant’s alternative submissions, as it is my view that unless and until a matter proceeds to arbitration, the grievance process under a collective agreement does not amount to a “proceeding” within the meaning of s. 45.1 of the Code.
20I reach this conclusion primarily on the basis that, until the point where a grievance proceeds to arbitration before a labour arbitrator agreed to by the parties or appointed under the Labour Relations Act, it is the employer itself that is making the decision whether to grant or deny the grievance. In my view, impartiality is an essential component of a “proceeding” within the meaning of s. 45.1 of the Code. My conclusion is underscored by this Tribunal’s decision in Claybourn, above, which expressed concern about a police service’s ability to rely upon s. 45.1 of the Code to dismiss an Application as the result of an investigation of a complaint filed under the Police Services Act, on the basis that such a finding would allow a chief of police “to become the judge in his own case”, with the result that the police service’s decision to dismiss a Police Services Act complaint could have the effect of exonerating the chief of police and the police service from human rights liability and remedies: see Claybourn, above, at para. 84.
21In Penner v. Niagara (Regional Police Services Board), 2013 SCC 19, which was relied upon and applied by this Tribunal in the Claybourn decision, the Supreme Court of Canada was dealing with the issue of whether the doctrine of issue estoppel should be applied to preclude a civil action where the plaintiff had filed a complaint under the Police Services Act which had proceeded to a full hearing before a hearing officer appointed by the chief of police and had been dismissed. In finding that it would be unfair to apply issue estoppel in these circumstances, one of the reasons relied upon by the Court was the role played by the hearing officer in this statutory scheme, acting as designate for the chief of police. At paras. 66-67, the Court stated:
Applying issue estoppel against the complainant here had the effect of permitting the Chief of Police to become the judge in his own case, with the result that his designate’s decision had the effect of exonerating the Chief of Police and his police service from civil liability. In our view, applying issue estoppel here is a serious affront to basic principles of fairness. (emphasis added)
22In the same way, in the instant case, in my view it would be a serious affront to the basic principles of fairness to allow the respondent’s own decision to deny the applicant’s grievance following a Step 2 grievance meeting to effectively insulate the respondent from human rights liability under the Code.
23In determining whether a particular process amounts to a “proceeding” within the meaning of s. 45.1 of the Code, this Tribunal has considered whether a neutral third person has applied an objective legal standard to a certain set of facts and reached a conclusion: see Maxwell v. Cooper-Standard Automotive Canada Limited, 2013 HRTO 1482 at paras. 37-38; Soni v. Hilton Suites Toronto/Markham Conference Centre and Spa, 2015 HRTO 713.
24In my view, the respondent’s own decision to deny the grievance following the Step 2 meeting violates the requirement that this decision be made by a neutral or impartial person, and on that basis alone deprives this decision and the grievance process up to the point of the Step 2 process from being regarded as a “proceeding” within the meaning of s. 45.1 of the Code.
25The respondent further took the position that the June 12, 2014 decision should be regarded as forming part of a “proceeding” on the basis that the grievance could have been pursued to arbitration, but was not. There is no question that, where a grievance has proceeded to a decision on the merits as a result of a grievance arbitration hearing, this Tribunal has found that this is a “proceeding” within the meaning of s. 45.1 of the Code: see Paterno v. Salvation Army, 2011 HRTO 2298; Weinberg v. MTCC 1019, 2010 HRTO 1527; Dunbar v. Haley Industries Limited, 2010 HRTO 272; Rodriques v. Toronto Community Housing, 2010 HRTO 258; Pinder v. Toronto District School Board, 2012 HRTO 1217.
26Where however, as in the instant case, the grievance does not proceed to a hearing and decision on the merits before a labour arbitrator, in my view it would not be appropriate for this Tribunal to consider the fact that the grievance “could” have proceeded to arbitration in order to find that the respondent’s decision following the Step 2 grievance meeting was part of a “proceeding” within the meaning of s. 45.1 of the Code.
27I say this for several reasons. First, such a finding would be inconsistent with this Tribunal’s case law holding that an applicant is not barred from proceeding with an Application before this Tribunal where her or his union has withdrawn a grievance prior to arbitration: see Paterno v. Salvation Army, Centre of Hope, 2010 HRTO 10; Parliament v. Metro Ontario, 2010 HRTO 1609; Poste v. Metro Ontario Inc., 2012 HRTO 2128; Dupuis v. Religious Hospitallers of St. Joseph of Cornwall, 2010 HRTO 1079 at para. 22-23; Jean v. Résidence St. Louis, 2011 HRTO 1800 at para. 18-19; Daoust v. Sudbury Regional Hospital, 2012 HRTO 1868 at para. 9-10; Shannon v. Renfrew (County), 2010 HRTO 930; Yunger v. Toronto (City), 2013 HRTO 962; Jama v. Imperial Parking Canada Corporation, 2015 HRTO 422 at para. 19.
28Indeed, in Crowley v. Liquor Control Board of Ontario, 2010 HRTO 2407, this Tribunal allowed an application to proceed where the union had referred a grievance to arbitration, but where the grievor refused to cooperate in the arbitration process resulting in the dismissal of the grievance, on the basis that there was no determination on the merits or substance of the issues raised.
29Second, in the grievance arbitration process, it is not the employee’s decision whether to proceed to arbitration; rather that decision rests entirely with the union. As a result, the employee has no control over whether or not the union decides to proceed with a grievance to arbitration. In its submissions before me, the respondent argued that the applicant could have proceeded with a duty of fair representation complaint to the Ontario Labour Relations Board (“OLRB”) in relation to the union’s decision not to proceed with arbitration of the termination grievance. While that may be true, the OLRB’s jurisdiction in such matters is only to determine whether the union acted in a manner that was arbitrary, discriminatory or in bad faith. The OLRB does not address matters where, as in the instant case, the union has made a decision in consultation with its legal counsel not to pursue a grievance to arbitration on the basis of the union’s view that the grievance is not likely to succeed.
30Third, a finding that an application should be dismissed pursuant to s. 45.1 of the Code on the basis that the grievance “could” have been pursued to arbitration would be inconsistent with the statutory amendments to the Code in 2008. Prior to these amendments, the Ontario Human Rights Commission had the discretion under former s. 34(1)(a) of the Code not to deal with a complaint of discrimination if the matter “could or should more appropriately have been dealt with under another Act”. That reason for not dealing with a complaint of discrimination was deliberately excluded from the Code as a result of the 2008 amendments and replaced with current s. 45.1, which requires that the substance of an Application have actually been “dealt with” in another proceeding: see Hoberg v. National Hockey League, 2010 HRTO 1805 at para. 16.
31Accordingly, I find that the decision made by the respondent’s Human Resources director on June 12, 2014, following the Step 2 grievance meeting was not part of a “proceeding” within the meaning of s. 45.1 of the Code. As a result, as finding that the decision at issue was part of a “proceeding” is an essential component to invoke s. 45.1 of the Code, it is not necessary for me to proceed to deal with the question of whether the substance of the Application was appropriately dealt with or the broader issue of the fairness of applying s. 45.1 in the circumstances of this case.
32For all of these reasons, the respondent’s request for dismissal of the Application pursuant to s. 45.1 of the Code is denied.
Applicant’s request to amend
33As stated above, the applicant has filed a request to amend his Application in order to clarify the nature of his allegations of discrimination and to seek monetary compensation.
34With regard to the former request to amend, the applicant seeks to amend the Application to clarify that his allegation of discrimination because of his race and ethnic origin is based upon the respondent’s uneven and discriminatory application of its policies in that the respondent disciplined the applicant more harshly than it would have, or had in the past, in relation to Caucasian employees or employees of a different race or ethnic origin than the applicant.
35With regard to the latter request to amend, the applicant did not originally seek monetary compensation in his Application but sought only reinstatement. He now seeks to amend the Application to claim monetary compensation.
36These amendment requests are opposed by the respondent.
37In determining requests to amend applications, the Tribunal generally considers the nature of the proposed amendments, the reasons for the amendments, the timing of the request to amend, and the prejudice to the respondent. See, for example, Aubin v. Sudbury Sexual Assault Crisis Centre, 2011 HRTO 1281; Odell v. TTC, [2001] OHRBID No. 2; Dube v. Canadian Career College, 2008 HRTO 336; Wozenilek v. 7-Eleven Canada Inc., 2009 HRTO 926.
38In particular, the Tribunal has generally granted requests to amend remedy when requested to do so: Fernando v. Metro Toronto Convention Centre Corporation, 2014 HRTO 1140.
39With regard to the nature of the amendments, I note that the Application as originally filed explicitly references the allegation that other employees who were caught eating food were given warnings or suspensions, and not terminated. The applicant makes reference to this allegation of differential application of the respondent’s policy in responding to the question in the Application as to why he believes that he was discriminated against because of his race and ethnic origin, although he ties this to his poor English. In my view, the clarification provided by the requested amendment does not significantly alter the nature of the allegations to be addressed in this proceeding.
40With regard to the reasons for the amendments, the applicant notes that he did not have legal counsel at the time the Application was filed and does not possess strong English language skills. The respondent notes that the applicant could have utilized the services of the Human Rights Legal Support Centre, which offers assistance to Mandarin-speaking individuals. While that may be true, in my view this does not detract from the legitimacy of the applicant’s reason for requesting these amendments at this early stage of the proceeding.
41With regard to the timing of the request to amend, the request was filed on February 2, 2015, just prior to the filing of the applicant’s Reply to the respondent’s Response. This was at a very early stage of the proceeding, prior to mediation, scheduling of the hearing, disclosure of documents, filing of pre-hearing materials or the hearing itself.
42With regard to prejudice to the respondent, the respondent sets out a number of alleged examples of prejudice. First, it is alleged that prejudice is caused because the request to amend was made after the respondent had made its request to dismiss pursuant to s. 45.1 of the Code as part of its Response. I fail to see how the amendments cause any prejudice to the respondent’s request to dismiss, which has now been denied in any event.
43The respondent also alleges prejudice on the basis that the amendment requests were filed after it had filed its Response. I observe that this is typically the case in relation to many amendment requests, and can be rectified by allowing the respondent the opportunity to file an amended Response.
44Next, the respondent submits that the requested amendments will unnecessarily delay this proceeding. As set out below in my discussion of next steps, this is not in fact the case. The matter will either be scheduled for mediation, if all parties agree, or be scheduled for hearing. The process of allowing the respondent the opportunity to file an amended Response will be completed well in advance of any mediation or hearing, and will not delay this proceeding in any way.
45The respondent next asserts that the amendments make new and unsubstantiated allegations designed solely to harm the reputation of individuals working for it. As already stated above, I do not see the requested amendments as significantly changing the allegations of differential application of the respondent’s policies as originally set out in the Application, so I fail to see how the proposed amendment to the applicant’s allegations can cause any real prejudice to the respondent. Whether or not these allegations can be substantiated is a matter to be determined at the hearing stage.
46Finally, the respondent alleges prejudice on the basis that the applicant specifically excluded any request for monetary compensation in the Application as originally filed. While I appreciate that the respondent now may be exposed to the risk of a monetary award if the applicant is successful in this proceeding, I do not see that as amounting to prejudice to the respondent that would justify denying the applicant’s request.
47Accordingly, for all of the foregoing reasons, the applicant’s request to amend his Application in the manner set out in the Request for Order dated February 11, 2015 is granted.
Next steps
48The applicant shall serve and file an amended Application in accordance with the amendments sought and granted within 14 calendar days of the date of this Interim Decision. Within a further 35 calendar days, the respondent shall serve and file any amended Response. And within 14 calendar days of service of any amended Response, the applicant may file an amended Reply with any amendments only to address any amendments made to the Response.
49I note that the respondent has indicated in its Response that it is agreeable for this matter to proceed to mediation. In the Application, the applicant has not confirmed his agreement to mediation. If the parties are prepared to proceed to mediation in this matter, they shall so advise the Tribunal within 14 calendar days of the date of this Interim Decision. If either party fails to agree to mediation within this time period, the matter will proceed to be scheduled for a hearing.
ORDER
50For all of the foregoing reasons, I hereby make the following order:
a. The respondent’s request for dismissal of the Application pursuant to s. 45.1 of the Code is denied;
b. The applicant’s request to amend his Application in the manner set out in the Request for Order dated February 11, 2015 is granted;
c. Within 14 calendar days of the date of this Interim Decision, the applicant shall serve and file an amended Application in accordance with the amendments sought and granted. Within a further 35 calendar days, the respondent shall serve and file any amended Response. And within 14 calendar days of service of any amended Response, the applicant may file an amended Reply with any amendments only to address any amendments made to the Response; and
d. Within 14 calendar days of the date of this Interim Decision, the parties shall advise the Tribunal whether they are prepared to proceed to mediation in this matter.
Dated at Toronto, this 26th day of August, 2015.
“Signed By”
Mark Hart
Vice-chair