Heron v. Canadian Blood Services, 2015 HRTO 664

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kenneth Heron

Applicant

-and-

Canadian Blood Services

Respondent

DECISION

Adjudicator: Dawn J. Kershaw
Date: May 20, 2015
Citation: 2015 HRTO 664
Indexed as: Heron v. Canadian Blood Services

APPEARANCES

Kenneth Heron, Applicant

Self-represented

Canadian Blood Services, Respondent

Sarah Eves, Counsel

Introduction

1This Application alleges reprisal and discrimination with respect to employment because of association contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant alleges he suffered harassment because of his association with a transgendered individual contrary to the Code.

2This Application was deferred by order dated November 19, 2012 (2012 HRTO 2167) (“deferral decision”) pending the conclusion of a grievance arbitration.

3On October 30, 2013, the applicant sent the Tribunal the October 7, 2013 grievance arbitrator’s decision (“the arbitrator’s decision”).

4On July 25, 2014, the Tribunal wrote to the applicant confirming receipt of the arbitrator’s decision but advised he had not filed a Form 10 Request for Order During Proceedings (“RFOP”) to request re-activation of the deferred Application pursuant to Rule 14.3 and 14.4 of the HRTO’s Rules of Procedure, and that he must do so by August 8, 2014.

5The applicant filed a Form 10 RFOP on August 7, 2014 requesting that the Application be reactivated.

6In its August 21, 2014 Response to the RFOP, the respondent requested the Application not be reactivated and it be dismissed pursuant to s. 45.1 of the Code because the grievance arbitration appropriately dealt with the substance of the Application.

7A preliminary hearing on these issues was held by teleconference. Both parties attended and made oral submissions.

reactivation

Parties’ Submissions

8The respondent opposes reactivation on the basis that the request to reactivate was filed after the 60 day time limit set out in Rule 14 of the Tribunal’s Rules.

9The applicant makes two main submissions. First, he submits he thought the Application was ongoing and he was waiting for the Tribunal to contact him. He did not know he had to reactivate the Application. Secondly, he states he thought the Application was dismissed when the arbitrator’s decision dismissed his grievance. He submits he did not get a copy of the arbitrator’s decision, although in reply submissions he states he did get a copy of the arbitrator’s decision. He also acknowledges receiving the deferral decision.

10The respondent argues the applicant did not meet the 60 day deadline. The applicant received a copy of the arbitrator’s decision and sent a copy of it to the Tribunal on October 30, 2013 but did not file a RFOP requesting reactivation until August 7, 2014.

11The respondent submits that given the applicant’s two main submissions, it is not clear there is any good faith reason for the delay in requesting reactivation. The respondent further submits the applicant knew he must request reactivation of his Application upon the conclusion of the arbitration proceeding because paragraph 9 of the deferral decision refers the parties to Rule 14 and to the fact that it outlines the procedure by which the Application may be brought back on after the conclusion of the grievance process.

Decision on Reactivation

12The applicant received the deferral decision and the arbitrator’s decision. He was put on notice in the deferral decision that he had to comply with Rule 14. He also received a copy of the arbitration decision and sent it to the Tribunal on October 30, 2013. Because he did not file his request for reactivation until August 7, 2014, he did not meet the 60 day timeline that in this case is calculated from the date of the conclusion of the grievance arbitration.

13For this reason alone, I find the applicant’s request to reactivate the Application should be dismissed for delay. However, given the comprehensive submissions made by the respondent, I find it appropriate to also address the issue of whether the Application should be dismissed pursuant to s. 45.1 of the Code because the grievance arbitration appropriately dealt with the substance of the Application. For the following reasons, I find the Application should be dismissed even if I granted the applicant’s request to reactivate the Application.

Section 45.1 – request to dismiss

Background

14The applicant’s grievance contends he was harassed, bullied and discriminated against by a colleague and his employer, the respondent, which resulted in a poisoned workplace for him. After the applicant provided 10 pages of particulars and 45 pages of documents in the arbitration, the respondent asked the arbitrator on a preliminary motion to dismiss the applicant’s grievance on the basis that there was no prima facie case of discrimination pursuant to the Code.

15The preliminary motion was held on September 17, 2013, with further written submissions made on September 23, 2013. No witnesses testified. The arbitration decision was issued on October 7, 2013.

16The arbitration decision addressed the applicant’s allegations that he was discriminated against on the basis of family status and association, as follows:

a. he was harassed, bullied and discriminated against by a colleague and the respondent, resulting in a poisoned workplace for him;

b. that the applicant would not condone or contribute to the colleague’s “smear campaign” against a transgendered co-worker and that when he stood up for the co-worker he became the colleague’s target; and

c. that he was discriminated against on the basis of family status.

The Law

17Section 45.1 of the Code reads as follows:

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.

18The Tribunal has held that, in determining whether to dismiss an application pursuant to s.45.1 of the Code, it ought to consider: (1) whether there was another “proceeding” and (2) if so, whether that proceeding “appropriately dealt with the substance of the application”.

19I have no difficulty concluding that the grievance arbitration was another proceeding. See Wei v. Seneca College of Applied Arts and Technology, 2010 HRTO 2046 and Delos Santos v. Maple Lodge Farms, 2009 HRTO 1690. The question remains whether the grievance arbitration appropriately dealt with the substance of the Application.

Parties’ Submissions on Whether the Grievance Arbitration Appropriately Dealt with the Substance of the Application

20The applicant argues the grievance arbitration did not appropriately deal with the substance of the Application because the respondent never dealt with his colleague’s harassment against him or against his co-worker. In his view, the arbitration decision did not go into detail with why it was tossed out. The applicant submits he does not understand how his co-worker could be so abused by his colleague and yet the abusive colleague remain employed by the respondent.

21The respondent submits the grievance proceeding appropriately dealt with the substance of the Application because the arbitration decision dealt with the applicant’s allegations. The applicant had time to provide particulars and additional documents to the arbitrator and did so through Union counsel.

22The respondent submits that in her 27 page decision the arbitrator made it clear she reviewed all the information submitted by the applicant. She addressed all of the applicant’s allegations with respect to family status and association, even though he did not make claims on the basis of family status.

23The respondent submits the arbitrator determined the applicant’s claim did not meet the test of a prima facie case of discrimination on the basis of family status after reviewing the applicant’s allegations and the Tribunal’s case law.

24With respect to the applicant’s claims of discrimination and reprisal, the respondent submits the arbitrator reviewed the applicant’s claims that the colleague harassed him and created a poisoned work environment for him and that the colleague took action against him because of his association with the co-worker. However, after conducting her review of his allegations and the Tribunal’s case law, she determined that the applicant had not made out a claim on the basis of association.

25The respondent submits the Tribunal is not an appellate body for the applicant’s arbitration, and he should not be able to re-litigate the claims that already were determined by the arbitrator.

26The respondent further argues that although the applicant did not give testimony in the grievance proceeding, he did provide particulars and documents in advance of the preliminary motion, and he was well represented by Union counsel at the preliminary hearing. In addition, the arbitrator references the Tribunal’s jurisprudence in reaching her conclusions.

27The respondent submits the Application raises no new issues or facts, and the applicant seeks to circumvent the appropriate review mechanism in the grievance proceeding. To allow this Application to proceed would be an abuse of process and an improper review of the arbitrator’s decision.

decision

28I find for the reasons that follow this Application should be dismissed.

29This Tribunal has found that the reasoning in the decision of British Columbia (Workers’ Compensation Board) v. Figliola (“Figliola”), 2011 SCC 52 applies to the interpretation of s. 45.1 of the Code (See Gomez v. Sobeys Milton Retail Support Centre, 2011 HRTO 2297 (“Gomez”)).

30Figliola explains the importance of the finality of litigation and the avoidance of multiple proceedings. The Tribunal is not to stand in appeal of other decision-makers. In addition, an applicant should not be allowed to re-litigate a case.

31It is clear from the applicant’s arguments he disagrees with the arbitration decision because in his view it did not deal with the allegations he made. I find, however, that in fact the arbitration did address, in addition to other allegations, the same allegations as those before this Tribunal, namely that the employer discriminated against the applicant based on his association with a co-worker.

32The fact that the applicant did not give evidence in the grievance arbitration also is not a reason to allow the Application to proceed. The applicant was given an opportunity to provide particulars, and the arbitrator heard submissions on the preliminary motion from both the applicant’s representative and the respondent’s representative.

33The Tribunal has dismissed an Application where the result of the parallel grievance arbitration was that it was dismissed because the applicant did not establish a prima facie case. See, e.g.: Thompson v. Liquor Control Board of Ontario, 2013 HRTO 1847 (“Thompson”). In the Thompson case, the applicant testified, which the applicant in this case did not, but that does not in my view necessarily mean the arbitration did not appropriately deal with the applicant’s issues (see also: Hussain v. Ontario (Community and Social Services), 2014 HRTO 1788 in which the Tribunal concluded that the applicant had an opportunity to meet his case despite not giving evidence). As the decision in Gomez found at paragraph 4, s. 45.1 of the Code does not involve an assessment of whether the other proceeding was procedurally or substantively correct:

Figliola instructs this Tribunal not to consider the procedural or substantive correctness of the other proceeding or decision when deciding whether the application or part of the application can proceed. If the reasons in the other decision dispose of the human rights issues before the Tribunal, the application or part of the application must be dismissed on the basis that it was appropriately dealt with in the other proceeding.

34If the applicant disagreed with the arbitration decision made before his evidence was heard, this properly would be a matter for requesting a judicial review of the arbitration decision, not a reason to allow re-litigation of the arbitration decision before this Tribunal.

35As noted above, with respect to the applicant’s allegations that he was discriminated against because of his association with a co-worker, the applicant provided particulars, documents and submissions on the preliminary motion. The arbitrator’s decision specifically referred to the Code and ultimately disposed of the applicant’s allegation of discrimination by finding that the applicant had not made out a prima facie case of discrimination.

36Therefore, I find that the arbitration appropriately dealt with the substance of the application and s. 45.1 applies.

37For these reasons, I find the Application must be dismissed.