Douglas Brooks v. City of Toronto, 2015 HRTO 362

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Douglas Brooks Applicant

-and-

City of Toronto Respondent

-and-

Toronto Professional Firefighters’ Association, Local 3888 IAFF Intervenor

DECISION

Adjudicator: Ken Bhattacharjee Date: March 23, 2015 Citation: 2015 HRTO 362 Indexed as: Brooks v. Toronto (City)

APPEARANCES

Douglas Brooks, Applicant Self-represented

City of Toronto, Respondent Darragh Meagher, Counsel

Toronto Professional Firefighters’ Association, Local 3888 IAFF, Intervenor Howard Goldblatt, Counsel

Introduction

1Douglas Brooks (the “applicant”) filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), which alleged that City of Toronto (the “respondent”) discriminated against him with respect to employment because of his age.

2The purpose of this Decision is to decide whether the Application should be dismissed on the basis that a proceeding before a Board of Arbitration appropriately dealt with its substance, or it has no reasonable prospect of success. The parties and the Toronto Professional Firefighters’ Association, Local 3888 IAFF (the “union”) attended a summary hearing where they had the opportunity to make oral submissions and present documents and cases, which addressed these issues. I have decided to dismiss the Application. The following are my reasons for the dismissal.

BACKGROUND

3The applicant began working as a firefighter with the former City of North York in 1991. The municipality had a plan which entitled firefighters to receive post-retirement benefits after age 65. The former City of Toronto had a similar plan for the firefighters that it employed. The former municipalities of Scarborough, York and Etobicoke did not have such a plan for the firefighters that they employed.

4On January 1, 1998, the above municipalities were amalgamated into the City of Toronto. The applicant is a member of the union. Pursuant to a collective agreement between the respondent and the union, which covered the period from January 1, 2007 to December 31, 2009, firefighters from the former municipalities of North York and Toronto continued to be entitled to receive post-retirement benefits after age 65, but such benefits were not extended to firefighters from the other former municipalities, or firefighters who were hired by the respondent following amalgamation.

5Following the expiry of this collective agreement, the respondent and union engaged in collective bargaining with the objective of entering into a new collective agreement. They were unsuccessful, and the outstanding issues were referred to a Board of Arbitration (the “Board”). One of the issues in dispute was the eligibility of firefighters to receive post-retirement benefits after age 65.

6The Board was appointed under the Fire Protection and Prevention Act, 1997, S.O. 1997, c. 4 (the “FPPA”). Section 50.5(2) of the FPPA stipulates:

In making a decision, the board of arbitration shall take into consideration all factors the board considers relevant, including the following criteria:

1. The employer’s ability to pay in light of its fiscal situation.
2. The extent to which services may have to be reduced, in light of the decision, if current funding and taxation levels are not increased.
3. The economic situation in Ontario and in the municipality.
4. A comparison, as between the firefighters and other comparable employees in the public and private sectors, of the terms and conditions of employment and the nature of the work performed.
5. The employer’s ability to attract and retain qualified firefighters.

7The Board also had the power to interpret and apply the Code. See sections 50.2(29) and 53(9)(j) of the FPPA, s. 48(12)(j) of the Labour Relations Act, 1995, S.O. 1995, c. 1, sched. A, as amended, and Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42.

8The hearing took place over four days. In its arguments before the Board, the union proposed that all firefighters be eligible to receive post-retirement benefits after age 65, or alternatively, all firefighters from the former municipalities of North York and Toronto continue to be entitled to receive post-retirement benefits after age 65, and all other firefighters be eligible to receive a health care spending account (“HCSA”) after age 65. The employer argued that it lacked the ability to bear the costs of the union’s proposals. The parties presented costing information, actuarial reports, and expert commentary in support of their arguments.

9In its analysis of this issue, the Board applied the criteria in s. 50.5(2) of the FPPA, but also stated:

(…) the statutory criteria that govern interest arbitration generally, and this case in particular, are neither exhaustive nor formulaic. Under the law, for reasons related to fundamental fairness, interest arbitrators are provided with a broad discretion to consider not only the statutory criteria but all other factors that are relevant and to provide appropriate weighting. [Emphasis added]

10The Board ultimately decided to standardize the eligibility of firefighters to receive post-retirement benefits after age 65 in the form of an annual HCSA, but with one proviso. The Board directed the parties to amend the article on eligibility to receive post-retirement benefits after age 65 in the predecessor collective agreement to the following. First, an HSCA of $3,000 per year available to all current firefighters, and any firefighters who retired on or after January 1, 2010. Second, a one-time election to the grandfathered former North York and Toronto firefighters who were presently eligible to retire on an unreduced pension, or were within one year of eligibility to retire on an unreduced pension, between the continuation of the grandfathered post-65 benefits or the $3,000 per year HSCA.

11Following the issuing of the Board’s award, the parties entered into a renewed collective agreement as directed by the Board, which covered the period from January 1, 2010 to December 31, 2014.

12On December 3, 2013, the applicant filed an Application with this Tribunal, which alleged that the respondent discriminated against him with respect to employment because of his age. The applicant was a grandfathered former North York firefighter, but he was seven years away from being able to retire on an unreduced pension. As such, he was ineligible to elect between the continuation of the grandfathered post-65 benefits or the $3,000 per year HSCA, and is now only eligible for the $3,000 per year HSCA. He alleged that Board’s award, and the respondent’s implementation of the award, resulted in discrimination against him because he was denied an election because of his age.

13On February 25, 2014, the respondent filed a Response, which stated that the Board applied legal principles, including the Code, in its award. The respondent requested that the Tribunal dismiss the Application on the basis of jurisdiction because the Application essentially amounts to an invitation for the Tribunal to review the award of the Board.

14On May 14, 2014, the Tribunal issued an Interim Decision, 2014 HRTO 690, which directed that a summary hearing be held to address whether Application should be dismissed (1) pursuant to s. 45.1 of the Code on the basis that the arbitration proceeding appropriately dealt with its substance, (2) on the basis of jurisdiction because the applicant is seeking a review of the Board’s award, or (3) because it has no reasonable prospect of success.

15The summary hearing took place on September 17, 2014. I heard the parties’ oral submissions and allowed them to file written submissions following the hearing.

ANALYSIS

16Section 45.1 of the Code and Rule 22 of the Tribunal’s Rules of Procedure provide that the Tribunal may dismiss an Application, in whole or in part, if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the Application. This Tribunal has found that the Supreme Court of Canada’s reasoning in British Columbia (Workers’ Compensation Board) v. Figliola, 2011 SCC 52 (“Figliola”), applies to the interpretation of s. 45.1 of the Code. See Gomez v. Sobeys Milton Retail Support Centre, 2011 HRTO 2297.

17Section 45.1 of the Code is the statutory reflection of the collective principles underlying the common law doctrines of issue estoppel, collateral attack, and abuse of process, which are used as vehicles to transport and deliver to the litigation process principles of finality, the avoidance of multiplicity of proceedings, and protection for the integrity of the administration of justice, all in the name of fairness. See Figliola, above, at paras. 24-25.

18The principles underlying s. 45.1 of the Code 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.
• 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.
• 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.
• Parties should not circumvent the appropriate review mechanism by using other forums to challenge a judicial or administrative decision.
• Avoiding unnecessary relitigation avoids an unnecessary expenditure of resources.

See Figliola, above, at paras. 34-35.

19Section 45.1 of the Code 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.

20In the case at hand, there was no dispute between the parties that the proceeding before the Board was a proceeding within the meaning of s. 45.1 of the Code. As such, the main issue to be decided is whether the Board appropriately dealt with the substance of the Application.

21In assessing whether the substance of an application was appropriately dealt with in another proceeding, the Tribunal must ask itself (1) whether there was concurrent jurisdiction to decide human rights issues; (2) whether the previously decided legal issue was essentially the same as what is being complained of to the Tribunal; and (3) whether there was an opportunity for the applicant or his or her privy 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. 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. See Figliola, above, at para. 37.

22In considering whether the other proceeding appropriately dealt with the substance of an application, this Tribunal may not evaluate the procedural or substantive correctness of the other proceeding. See Figliola, above, at para. 38.

23In his submissions, the applicant stated that the Board did not appropriately deal with the substance of the Application for three reasons. First, he was not a party in the arbitration hearing before the Board. Second, there is no reference in the Board’s award to the Code. Third, the Board acted against the Code by delivering an award with blatant age discrimination.

24I find that the Board appropriately dealt with the substance of the Application. The Board had jurisdiction to interpret and apply the Code, and the union, which was the applicant’s privy (the union is a typical example of what the Supreme Court identified in Figliola as a “privy”), had an opportunity to know the case to be met and had the chance to meet it. The Board’s award did not refer specifically to the Code, but it did specifically state that the criteria in s. 50.5(2) of the FPPA were not exhaustive, and “for reasons related to fundamental fairness,” it had broad discretion to consider “all other factors that are relevant,” and to appropriately weigh to them.

25Moreover, the Application is a collateral attack on the Board’s award. In Figliola, the Supreme Court stated at paras. 28-30:

The rule against collateral attack similarly attempts to protect the fairness and integrity of the justice system by preventing duplicative proceedings. It prevents a party from using an institutional detour to attack the validity of an order by seeking a different result from a different forum, rather than through the designated appellate or judicial review route: see Canada (Attorney General) v. TeleZone Inc., 2010 SCC 62, [2010] 3 S.C.R. 585, and Garland v. Consumers’ Gas Co., 2004 SCC 25, [2004] 1 S.C.R. 629.

Both collateral attack and res judicata received this Court’s attention in Boucher. The Ontario Superintendent of Pensions had ordered and approved a partial wind-up report according to which members of the plan employed in Quebec were not to receive early retirement benefits, due to the operation of Quebec law. The employees were notified, but chose not to contest the Superintendent’s decision to approve the report. Instead, several of them started an action against their employer in the Quebec Superior Court claiming their entitlement to early retirement benefits. LeBel J. rejected the employees’ claim. Administrative law, he noted, has review mechanisms in place for reducing error or injustice. Those are the mechanisms parties should use. The decision to pursue a court action instead of judicial review resulted in “an impermissible collateral attack on the Superintendent’s decision”:

Modern adjective law and administrative law have gradually established various appeal mechanisms and sophisticated judicial review procedures, so as to reduce the chance of errors or injustice. Even so, the parties must avail themselves of those options properly and in a timely manner. Should they fail to do so, the case law does not in most situations allow collateral attacks on final decisions . . . . [para. 35]

In other words, the harm to the justice system lies not in challenging the correctness or fairness of a judicial or administrative decision in the proper forums, it comes from inappropriately circumventing them (Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77, at para. 46).

26A collateral attack by this Tribunal on the Board’s award could potentially undermine the entire collective agreement. The respondent and the union entered into the collective agreement as directed by the Board. The Board’s award was based on its expertise in labour relations (including, but not limited to, the post-retirement benefits issue), and involved balancing compensation improvements and concessions. This Tribunal has no such expertise. See College of Nurses v. Trozzi, 2011 ONSC 4614 at para. 33.

27In my view, the applicant is attempting to circumvent the appropriate review mechanism by collaterally attacking the Board’s award in this Tribunal rather than following the vertical line of review by requesting that his union seek a judicial review of the Board’s award. Furthermore, if the union refuses to comply with such a request, he can bring a duty of fair representation complaint against it.

28Given my decision on these issues, it is not necessary to decide whether the Application should be dismissed because it has no reasonable prospect of success.

ORDER

29The Application is dismissed.