Michele Newby v. Toronto General Hospital – University Health Network, 2015 HRTO 127

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Michele Newby

Applicant

-and-

Toronto General Hospital – University Health Network

Respondent

-and-

Canadian Union of Public Employees, Local 5001

Intervenor

Decision

Adjudicator: David Muir

Date: January 28, 2015

Citation: 2015 HRTO 127

Indexed as: Newby v. Toronto General Hospital – University Health Network

APPEARANCES

Michelle Newby, Applicant

Self-represented

Toronto General Hospital – University Health Network, Respondent

Jacqueline Silvera, Counsel

Canadian Union of Public Employees, Local 5001, Intervenor

Alycia Shaw, Counsel

1In a Case Assessment Direction issued on August 28, 2014, the Tribunal directed, on its own initiative, that a telephone preliminary hearing be held on whether the Application should be dismissed, in whole or in part, pursuant to section 45.1 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) because another proceeding has appropriately dealt with the substance of the Application, or because this Application amounts to an abuse of process and/or issue estoppel applies.

2This preliminary hearing was held by telephone conference call on January 15, 2015. All parties were in attendance.

3The Application is dismissed.

4Section 45.1 of the Code states 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”.

5In her Application the applicant alleged that the respondent, who had been her employer, failed to accommodate her disability-related needs to the point of undue hardship and that her termination was discriminatory and based in whole or in part on her being a person with a disability. Subsequent to the applicant’s termination, a grievance was filed by the intervenor at the applicant’s request. A hearing into the grievance took place on August 15, 2013. The parties engaged in settlement discussions which were not successful. A hearing was held with witnesses, including the applicant, called to give evidence.

6The arbitrator released his decision on October 20, 2013 (the “award”). The grievance was denied – that is the arbitrator concluded that the dismissal of the applicant was for just cause and that the respondent had not failed to accommodate the applicant’s disability related needs. In the course of coming to that conclusion the arbitrator dealt with all of the human rights issues raised in the Application and relied on by the applicant at this hearing. Despite dismissing the grievance the arbitrator awarded the applicant 9 months of wages and other substantial benefits. The applicant has accepted this aspect of the arbitrator’s award, according to the respondent.

7The applicant argued that the arbitrator’s award is replete with errors and she can prove facts contrary to what the arbitrator concluded. The applicant referred to many paragraphs of the 41 paragraph award which the applicant asserted contained significant errors. She also believes that the process was unfair – although this conclusion flows entirely from her disagreements with many of the findings the arbitrator has made. The applicant also alleged that she did not understand one of the arbitrator’s proposals to settle the dispute during the course of the parties’ efforts to settle the grievance.

8The applicant made a number of other submissions related to the merits of her Application which are not detailed here because the issue I am required to determine is not whether there is merit to the Application, there may be, but whether or not it has been appropriately dealt with in the arbitration proceeding.

9In my view the law on the application of section 45.1 where the facts and issues raised in an Application to the Tribunal are also raised in a grievance proceeding is largely settled. The decisions I considered most were those which the parties were referred to in the Case Assessment Direction establishing this preliminary hearing, including the decision of the Supreme Court of Canada in British Columbia (Workers’ Compensation Board) v. Figliola, 2011 SCC 52, and the Tribunal’s decisions in Cunningham v. CUPE 4400, 2010 HRTO 658 (“Cunningham”); Gomez v. Sobeys Milton Retail Support Centre, 2011 HRTO 2297 (“Gomez”) and Hunter v. Farlake Dairy, 2011 HRTO 1906.

10I also considered a subsequent decision of the Supreme Court of Canada in Penner v. Niagara (Regional Police Services Board), 2013 SCC 19. See also Claybourn v. Toronto Police Services Board, 2013 HRTO 1298.

11In my view the substance of this Application has been appropriately dealt with. The cases above stand for the proposition that where a party commences a proceeding before an adjudicative body which has concurrent jurisdiction with the Tribunal to consider the Code in its deliberations and grant a remedy to the party, section 45.1 should be applied to prevent the re-litigation of an issue that has already been determined.

12There is no dispute that a grievance arbitration is a proceeding within the meaning of section 45.1. There is also no dispute that the facts and issues raised in this Application were before the arbitrator who had the authority to consider them and provide a meaningful remedy to the applicant including reinstatement. See Gomez, above. There is also no question that the arbitrator considered the issues raised by the applicant’s representative and that he considered the Code in making his determinations. Ultimately the arbitrator concluded that the applicant was dismissed for just cause and that the respondent had accommodated the applicant to the extent that it reasonably could.

13The applicant does not agree with the arbitrator’s conclusions. The fact that a party does not agree with the result of an adjudication is not a reason to allow the re-litigation of a dispute even where there is reason to believe those conclusions may be incorrect. See Cunningham, above as well as Toronto (City) Canadian Union of Public Employees, Local 79, 2001 CanLII 24114 (ON CA), 55, O.R. (3d) 541 (ON CA); affirmed by the Supreme Court of Canada 2003 SCC 63; [2003] 3. S.C.R. 77. In the Court of Appeal’s reasons, endorsed by the Supreme Court, Doherty J.A. discussed the importance of finality in decision making at paras: 79 to 81, in particular at para 81:

Finality is essential to the maintenance of a fair and effective adjudicative process. The values it serves are fundamental to that process and to the community. Firstly, relitigation raises the spectre of inconsistent results. Such results create a myriad of problems for those involved in the proceedings, including, but not limited to those arising from attempts to enforce conflicting orders. Inconsistent results are also capable of bringing the administration of justice into disrepute in the eyes of reasonable and well informed members of the community. ( …)

Secondly, relitigation diminishes the overall authority of the adjudicative process. What value is a result if that result can be challenged and relitigated in another forum at any time? Thirdly, relitigation breeds uncertainty. How can those drawn into the adjudicative process determine when they have reached the end of that process, get on with the rest of their lives and arrange their affairs in reliance on the decisions reached in that process? Finally, relitigation drains individual and institutional resources. Neither individuals, nor the community as a whole, have the resources or the lifespan required to permit the continual relitigation of decided issues.

In emphasizing the importance of finality, I do not pretend that the decision made in the first proceeding is always correct. It must, of course, be observed that relitigation is not a guarantee of a more accurate result. The simple truth is that finality is so essential that it is routinely given priority over the possibility that relitigation would achieve a more accurate result. The importance of finality is best seen in those cases where finality has trumped individual constitutional rights: Reference re Manitoba Language Rights, 1985 CanLII 33 (SCC), [1985] 1 S.C.R. 721, 19 D.L.R. (4th) 1; R. v. Thomas, 1990 CanLII 141 (SCC), [1990] 1 S.C.R. 713, 75 C.R. (3d) 352; and R. v. Sarson, 1996 CanLII 200 (SCC), [1996] 2 S.C.R. 223, 107 C.C.C. (3d) 21. In those cases, even though the decision is wrong in the most important sense in that it denies someone a fundamental right, the courts have held that finality precludes relitigation. A desire to avoid the harm caused by permitting relitigation is given paramountcy over the rights of the individual and the accuracy of the result in the particular case. (emphasis added)

14The only reason the applicant gives for seeking to relitgate her grievance is that she disagrees with the result. As can be seen from the decisions above, even an incorrect decision does not justify the relitigation of the determination.

15The respondent relied on the fact that the applicant took the benefit of the award while seeking to overturn the central thrust of it here. Given my conclusions above I need not consider this issue in my analysis of the problem. However I would observe that the fact that significant awards were made in the award which the applicant seeks to challenge by relitigating the issues here might constitute an abuse of process and therefore could lead to the same conclusions I have already come to about the propriety of allowing the relitigation of the issues raised in this case.

16For all of these reasons, the Application is dismissed pursuant to section 45.1 of the Code because I find that its substance has been appropriately dealt with in another proceeding. As such I do not need to consider issues of abuse of process and/or issue estoppel.