HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Dave Chivers

Applicant

-and-

National Steel Car Ltd. and John Durlov

Respondents

-and-

United Steel Workers, Local 7135

Intervenor

DECISION

Adjudicator: Leslie Reaume

Date: June 24, 2015

Citation: 2015 HRTO 843

Indexed as: Chivers v. National Steel Car Ltd.

APPEARANCES

Dave Chivers, Applicant

Grant Howell, Representative

National Steel Car Ltd. and John Durlov, Respondents

Jane M. Gooding, Counsel

Introduction

1This is an Application under s.34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination and reprisal with respect to employment.

2This Application was initially deferred pending the outcome of a grievance proceeding. The grievance alleged a failure to accommodate and discrimination against the respondents. The grievance proceeded to arbitration. The arbitrator found a breach of the Code but concluded that the applicant had not sustained any economic loss as a result of the breach. Following the arbitration, the Application was reactivated at the applicant’s request.

3This Decision deals with the request by the respondents to dismiss pursuant to section 45.1 of the Code on the basis that the substance of the Application has been appropriately dealt with at arbitration. The applicant opposes dismissal. He submits that the substance of his human rights Application was not appropriately dealt with at arbitration.

4The intervenor indicated by way of correspondence to the Tribunal that it did not take a position on the request of the respondents.

5The parties filed written material and I heard oral submissions on the issues by conference call on March 27, 2015.

The Application

6The Application was filed December 6, 2011. The applicant alleges discrimination on the basis of disability as well as reprisal. He filed the Application against his employer and a supervisor (the individual respondent). The Application contains a significant number of submissions about the law on the duty to accommodate and the applicant’s perspective on how that law applies to his case.

7The factual allegations are that the respondent refused to recall the applicant to work despite the fact that there was available work that the applicant was capable of performing. The applicant alleges that he should have been accommodated and recalled to work by February 2010 (with the exception of periodic lay-offs).

8The particulars of the reprisal allegation are the same as the main allegations of discrimination:

The applicant states there’s ample jobs in the workplace the applicant can perform. The applicant states he provided ten jobs he can do to the employer to no avail. The employer refuse to recall the applicant to work or accommodate the applicant. The employer has accommodated the applicant on prior occasions. This is a form of reprisal.

9When the Application was filed, the applicant made reference to an outstanding grievance dealing with the same issues. The grievance was dated April 12, 2011, and contained the following allegations: “unjust recall of the worker or failure to recall worker; failure to accommodate and discrimination of an injured worker.”

10The Tribunal issued a Notice of Intent to Defer the Application pending the outcome of the grievance process on March 1, 2012. The Application was deferred on the consent of the parties.

11On June 3, 2013, in response to a request by the Tribunal for a status on the grievance process, the applicant confirmed that the grievance process was still ongoing.

12On September 4, 2013, the applicant wrote to the Tribunal requesting to have his Application proceed. The applicant alleged that he had experienced a number of delays in the grievance process. He also alleged that since returning to work in 2012 he has experienced harassment as a result of his medical issues.

13The respondent wrote to the Tribunal objecting to the fact that the applicant had not filed a formal request to reactivate his Application, and in any event, the arbitration was scheduled to proceed on September 17 and 30, 2013 before an arbitrator.

14On May 21, 2014, the applicant filed the proper form and requested that his Application be reactivated. He enclosed a copy of the interim and final arbitration awards, dated November 12, 2013 and April 1, 2014. The applicant stated that the arbitration process did not appropriately deal with his accommodation issues.

15On October 4, 2014, the applicant sent a letter to the Tribunal requesting an amendment to his Application to include allegations that the union did not properly represent him at the arbitration and that the respondent had asked him for medical notes to substantiate each of his absences.

16The Tribunal issued a CAD dated December 30, 2014, indicating that the Tribunal would schedule a hearing on the section 45.1 issue. The Tribunal issued a second CAD dated March 12, 2015 denying the applicant’s request for an in-person hearing.

The Arbitration Decisions

17Arbitrator Barry Fisher issued two decisions in relation to the applicant’s grievance. The first is an interim award dated November 12, 2013 arising from three days of hearing in September and October, 2013, which finds that the respondents breached the Code. The second is a final award, dated April 1, 2014, arising from one day of hearing in March, 2014, which deals with the issue of remedy.

18In the interim award, the arbitrator indicates that the issue before him is that the employer failed to properly accommodate the applicant by not recalling him to work in May 2011. The same allegations which arose prior to May 2011 were the subject of other grievances alleging a failure to accommodate and recall the applicant. Those grievances, which are described in more detail below, were both settled.

19The basic history is set out in the interim award. The applicant is a welder who has worked with the respondents since October 1994. He had two compensable, work-related injuries in 2005. He was given various modified duties until it was determined that his restrictions were permanent. He was then given a position of Bench Welder in the Small Parts Department.

20The arbitrator set out a chronology of events leading up to the filing of the grievance which was the subject of the arbitration hearing. The applicant went off work in March 2009. He was laid off in July 2009 along with hundreds of co-workers. In January, 2010, in anticipation of a recall, the applicant took and passed his welding test. In February, 2010, the applicant submitted a WSIB Functional Abilities Form for Planning Early and Safe Return to Work (“FAF”) which was prepared by the applicant’s doctor containing a restriction on lifting. The respondents took the position that the restriction could not be accommodated and refused to recall the applicant back to work.

21The union filed a grievance on February 26, 2010, indicating that the respondents had failed to accommodate the applicant by failing to recall him. In April, 2010, the grievance was settled on the basis that the applicant would be recalled when work was available subject to his restrictions.

22In August 2010, the applicant filed two new FAF’s. The employer again took the position that the applicant could not be accommodated and the union filed a second grievance in September 2010 alleging a failure to accommodate and a failure to recall the applicant. That grievance was settled on the basis that the applicant would be recalled based on his seniority, availability of work and his restrictions.

23The arbitrator explained why this chronology was important to his decision-making. He found that the two previous grievances were settled on the basis that the applicant would be recalled based on his seniority, availability of work and his restrictions. From this the arbitrator concluded that as of September 29, 2010 (the date of the settlement of the second grievance), the applicant could not perform any work at the employer.

24The arbitrator also noted that as of September 29, 2010, the employer and the union had in their possession two contradictory FAF’s. In his interim award, the arbitrator made the following statement: “Apparently neither the union nor the employer thought it was important to seek clarification from the grievor’s doctor as to which statement was correct as both could not possibly be correct at the same time.” The arbitrator also found that when the FAF’s of May 4, 2011 were submitted, the same contradiction was repeated and neither the union nor the employer sought further information from the applicant’s doctor.

25The arbitrator considered the evidence about the availability of other jobs and modified work and concluded that none of the jobs were available as a permanent job for the applicant, either because of his physical restrictions, his seniority, or that the task was an assignment, not a full time job. The arbitrator concluded that the applicant’s best and most appropriate position was bench welding, the position he was in at the time of the arbitration.

26The arbitrator concluded his findings as follows:

I have no hesitation in finding that by failing to ask the Grievor’s doctor in 2011 exactly what they did ask him in 2012, that is to clarify whether or not the Grievor could lift up to 5 kilos, that the employer failed to properly accommodate his disability and thus breached their duty to accommodate under the Ontario Human Rights Code. They further breached the Code by requiring that in 2011 he be able to lift parts up to 24 kilos when that was not an essential part of the job because of the availability of the overhead crane.

27In the final award dated April 1, 2014, the arbitrator considered the issue of the appropriate remedy. The applicant’s doctor testified. The arbitrator considered the doctor’s testimony and concluded that the applicant suffered no economic loss as a result of the respondents’ failure to properly assess his accommodation needs in 2011. He also noted that the union did not seek any other remedy other than the declaration set out in the Interim Award that the respondents breached their duty to accommodate the applicant in 2011.

Section 45.1

28The respondent submits that the substance of the human rights Application was appropriately dealt with by the arbitrator. Section 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.

29The Tribunal has held that, in determining whether an Application ought to be dismissed pursuant to s.45.1 of the Code, it ought to consider: (1) whether there was another “proceeding”; and (2) if so, whether it “appropriately dealt with” the substance of the Application”.

30There is no question that the decision of the arbitrator in this case arises from a proceeding. The Tribunal has long accepted that labour arbitrations constitute a proceeding pursuant to section 45.1 of the Code.

31The substance of the Application is the same as the grievance: the applicant alleges discrimination on the basis that the respondents failed to recall and accommodate him. While the applicant argued that his reprisal allegations were not dealt with by the arbitrator, it is clear that the reprisal allegations are also based on the failure to recall and accommodate him. In the Application, the applicant states that it is a form of reprisal to refuse to recall him when there were “ample jobs” in the workplace which the applicant could perform. The substance of the Application is therefore the failure to recall and accommodate the applicant and those issues were dealt with directly by the arbitrator.

32In his oral submissions, the applicant’s representative stated that the arbitrator did not deal with all of the issues including lost wages, benefits and other economic entitlements going back to 2010 which the applicant claims flow from the breach of the Code. He argued that the applicant should have been back to work “a long time ago”. The applicant argued that he should be permitted to proceed before this Tribunal in order to have a complete and thorough review of all the issues associated with the failure to recall him to work. He stated, for example, that the arbitrator and the union did not ask his doctor the right questions during his testimony and that if he had been permitted, he would have asked his doctor about the lifting device and its impact on his ability to do his job.

33Fundamentally the applicant believes that the decision of the arbitrator is incomplete and/or incorrect, and that in all of the circumstances, it would be unfair to bar his human rights Application based on the outcome of arbitration. He is seeking to reopen all of the issues which were the subject of settled grievances and the arbitration awards based on his dissatisfaction with the outcome of those proceedings.

34I agree with the Tribunal decision in K.M. v. Kodama, 2014 HRTO 526 (upheld: Ontario (Community Safety and Correctional Services) v. De Lottinville, 2015 ONSC 3085) on the relationship between issue estoppel, fairness and finality. In that decision, the Tribunal found that the fairness of using the results of another proceeding to bar a human rights Application is a principle that ought to be considered in applying s.45.1 of the Code. The Tribunal also noted that an application should not be dismissed as having been “appropriately dealt with” in another proceeding without taking into account the nature of the other proceeding, the applicant’s stake in it and the parties’ reasonable expectations about the impact of the earlier proceeding on their broader legal rights.

35In this case, the applicant’s allegations were the subject of two settlements and an arbitration decision. The arbitrator found that the Code had been breached. The applicant disagrees with the way the arbitration was conducted, and the finding that there was insufficient evidence to establish economic loss. The applicant also argues that he was not properly represented by the union.

36To permit the applicant to proceed before this Tribunal would be tantamount to permitting him to appeal the arbitration decision. The arbitrator heard evidence in relation to both the breach of the Code and the appropriate remedy. He also made findings in relation to the two grievances which were settled prior to April, 2011. There is no basis for permitting the applicant to re-litigate these issues before this Tribunal. Accordingly, those allegations are dismissed.

Amendments to the Application

37The applicant filed a Request to amend the Application which was received by the Tribunal on October 9, 2014. The narrative of the Request states that the applicant is seeking more relief under the Code; that he is presently working on the amendments; and that he will be presenting the Tribunal with all of the particulars on this issue as soon as the material is completed.

38The Tribunal received a letter from the applicant on October 20, 2014 which is dated October 4, 2014, asking to amend his Application to include the following allegations:

• I have grievances (2012, 2013 and 2014) that the union has failed to act on;
• I feel that no one was actually representing me at the Arbitration;
• I feel that I was poorly represented at the Arbitration, my Doctor was not given the opportunity to view the job and all the mechanical devises that were available to assist me in the bench welding job;
• I was able to seek employment at another Employer with my restrictions why could Steel Car not accommodate me.
• “plus F.A.F”. (this was added to the list on October 31, 2014 by way of a hand-written amendment)

39The respondents oppose the applicant’s request.

40Those points which relate to the applicant’s representation at arbitration, the questions his doctor was or was not asked in testimony and another employer’s ability to accommodate his restrictions, are not allegations of discrimination. They describe the applicant’s dissatisfaction with the arbitration process. The allegation that the union has failed to proceed with various grievances filed since the applicant returned to work does not provide me with sufficient information to determine whether or not these are allegations of discrimination and/or reprisal over which this Tribunal has jurisdiction.

41The applicant’s request to amend the Application is denied.

Conclusion

42For the reasons set out above, the applicant’s request to amend the Application is denied. I find that the requirements of section 45.1 have been met. The substance of the Application has been appropriately dealt with in another proceeding.

43Accordingly, the Application is dismissed.