Singh v. Olymel S.E.C./LP, 2015 HRTO 901

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kashmir Singh Applicant

-and-

Olymel S.E.C./LP Respondent

-and-

United Food and Commercial Workers Union, Local 175 Intervenor

DECISION

Adjudicator: Brian Cook Date: July 8, 2015 Citation: 2015 HRTO 901 Indexed as: Singh v. Olymel S.E.C./LP

APPEARANCES

Kashmir Singh, Applicant Deepinder Loomba, Paralegal

Olymel S.E.C./LP, Respondent Stephen Bernardo, Counsel

UFCW Local 175, Intervenor Catherine Davis, Counsel

1This Decision deals with the applicant's request to re-activate an Application that was deferred pending the conclusion of a related proceeding. It follows a telephone conference call hearing on June 29, 2015. In a Case Assessment Direction dated January 23, 2015, the Tribunal identified two issues about the request to reactivate:

1. Was the request to re-activate timely, and
2. Did the grievance procedure appropriately deal with the substance of the Application?

2In regard to the first question, the Tribunal’s Rules provide that when an Application has been deferred because of another proceeding, the applicant must ask that the Application be re-activated within 60 days of the conclusion of the other proceeding.

3In regard to the second question, section 45.1 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), provides as follows:

45.1 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.

4The substance of the Application is that the applicant alleges that the respondent failed to accommodate his disability contrary to the duty to accommodate established by the Code.

Background

5The applicant suffered a work-related injury in June 2007. There followed a number of return to work activities, involving the Workplace Safety and Insurance Board (“WSIB”), the applicant, the respondent, and the union. The union filed a grievance in June 2011 alleging a failure to accommodate. That grievance was eventually referred to an arbitrator, who held a hearing over several days in the period from December 2011 to March 2013. In a decision dated March 17, 2013, the arbitrator determined:

I find that the employer was and is incapable of accommodating [the applicant]. He is unable to do the essential duties of the lightest job in the plant. All the other production jobs are heavier or require more speed and there are no tasks to be taken from them to make up a bundle of duties within his restrictions. As a result the Grievance is dismissed.

6After this decision, the applicant’s employment was terminated in June 2013. A new grievance was filed about that, which was withdrawn at the request of the applicant in September 2014. In February 2014, a request for judicial review of the arbitrator’s decision brought by the union, was dismissed.

7The Application with this Tribunal was filed on June 24, 2013. It was initially deferred because of the first grievance that was at that time ongoing and then because of the judicial review application and the second grievance.

8The request to re-activate the Application was brought in January 2015, which was more than 60 days after the conclusion of the grievance proceedings and of the dismissal of the request for judicial review.

Conclusions

9For the reasons that follow, I find that the substance of the Application has been appropriately dealt with by the decision of the arbitrator and it is dismissed on that basis. As a result, it is not necessary to deal with the timeliness issue.

10I find that the substance of the Application and the substance of the grievance dealt with by the arbitrator are identical. Both allege that the respondent failed to accommodate the applicant who needed accommodation because of a disability.

11Determinations by this Tribunal about whether another proceeding has appropriately dealt with the substance of an Application have been guided by the decisions of the Supreme Court of Canada in British Columbia (Workers’ Compensation Board) v. Figliola, 2011 SCC 52 and Penner v. Niagara (Regional Police Services Board), 2013 SCC 19. The Tribunal has considered how these decisions impact the Tribunal’s interpretation of section 45.1 in a number of cases, notably, Claybourn v. Toronto Police Services Board, 2013 HRTO 1298, and that decision was upheld by the Divisional Court in Ontario (Community Safety and Correctional Services) v. De Lottinville, 2015 ONSC 3085.

12In a case like the present one, these cases require the Tribunal to ask the following primary questions:

1. Did the other proceeding give an opportunity for the parties to know the case to be met and the chance to meet it;
2. Was the legal issue in the other proceeding essentially the same as what is being complained of to the Tribunal; and
3. Would unfairness result if the principle of issue estoppel was applied in the particular circumstances of the case?

13In this case, the arbitrator held a hearing over several days. The applicant was present and had the assistance of a professional interpreter. The grievance was brought by the union which retained counsel. The decision of the arbitrator makes clear that the issues in the proceeding were understood by everybody concerned and there was a full opportunity to present evidence and make submissions. As I have noted earlier, it is clear that in this case the issues in the grievance proceeding before the arbitrator were identical, or virtually identical, to the issues in the Application.

14On behalf of the applicant, Mr. Loomba submitted that it would be unfair to not allow the Application to proceed because, in his view, the decision of the arbitrator was wrong. Mr. Loomba suggested that if different evidence had been presented, or if different legal arguments had been presented, the arbitrator might have decided the case differently.

15The cases referred to earlier make plain that in deciding whether an Application should be dismissed under section 45.1 of the Code, the question that must be answered focusses on the substance of the issues and not on how those issues were decided.

16In this case, it is clear that the substance of the Application is the same or virtually the same as the substance of the matter before the Arbitrator.

17I understand that the applicant does not agree with the decision of the arbitrator and believes that it was an unfair decision. However, in this case, the applicant has had a full opportunity for a hearing on the same issues as he would now like to pursue at this Tribunal. The arbitrator had the same authority to apply the Code, as does this Tribunal and the opportunity for remedies was also the same. In these circumstances, it is clear that allowing the applicant to proceed with the Application at this Tribunal would be allowing him to re-argue a case that has already been decided. As the Supreme Court has made clear in the decisions noted above, the basic principle of the doctrine of issue estoppel is that this should not be permitted unless there is something about the circumstances of the case that means that the doctrine should not be applied. The fact that the applicant does not agree with the result in the other proceeding is not a sufficient reason to depart from the general rule.

18As a result, the Application is dismissed on the basis that the grievance proceeding and the decision of the Arbitrator appropriately dealt with the substance of the Application.