Edwards v. Carillion Services Inc., 2015 HRTO 99

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Horatio Edwards

Applicant

-and-

Carillion Services Inc.

Respondent

DECISION

Adjudicator: Ken Bhattacharjee

Date: January 23, 2015

Citation: 2015 HRTO 99

Indexed as: Edwards v. Carillion Services Inc.

APPEARANCES

Horatio Edwards, Applicant

Self-represented

Carillion Services Inc., Respondent

Dan J. Shields, Counsel

Introduction

1The 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 the respondent discriminated against him and subjected him to reprisal.

2The purpose of this Decision is to decide whether the Application should be dismissed on the basis that a proceeding before a labour arbitrator appropriately dealt with its substance. The parties attended a preliminary hearing where they had the opportunity to make oral submissions and present documents and cases, which addressed this issue. I have decided to dismiss the Application. The following are my reasons for the dismissal.

BACKGROUND

3The respondent employed the applicant as a cleaner. He was a member of the Canadian Union of Public Employees, Local 145 (the “Union”). On January 23, 2012, the respondent terminated the applicant’s employment following two incidents which occurred on January 18 and 19, 2012.

4On January 26, 2012, the Union filed a grievance on the applicant’s behalf, which alleged that the respondent had violated several provisions of the collective agreement, including the “No Discrimination” provision, by discharging him without just cause.

5On January 17, 2013, the applicant filed an Application with this Tribunal, which alleged that the respondent discriminated against him with respect to employment because of his race, disability, association with a person identified by a Code ground, and that the respondent subjected him to reprisal. The main allegation in the Application is that the respondent discriminated against him and subjected him to a reprisal when it terminated his employment. The Application also appears to allege that the respondent discriminated against him by failing to pay him during sick leaves, and requiring him to sign “consent to release” forms following sick leaves.

6On April 25, 2013, the Tribunal issued an Interim Decision, 2013 HRTO 704, which ordered that the Application be deferred pending the conclusion of the arbitration process. The Interim Decision also notified the parties that, pursuant to the Tribunal’s Rules of Procedure, where a party wishes to proceed with an application which has been deferred, the party must make a Request for an Order During Proceedings (“RFOP”) within 60 days after the conclusion of the other proceeding.

7The hearing before the arbitrator took place over five days between March and November 2013. The arbitrator issued his award on January 25, 2014 (the “award”). In his award, the arbitrator found that the applicant committed an act of violence in the workplace on January 18, 2012, and that he was insubordinate following an interview with two of the respondent’s managers on January 19, 2012. The arbitrator found that, in the circumstances, it was appropriate for the respondent to discipline the applicant, but it did not have just cause to dismiss him. As a remedy, the arbitrator declined to reinstate the applicant, but ordered the respondent to pay him appropriate severance and termination pay under the Employment Standards Act, 2000, S.O. 2000, c. 41, an additional five months of wages, and a further 14% on the five months’ pay in lieu of fringe benefits.

8With respect to other allegations that the applicant may have against the respondent, the arbitrator made the following observation at para. 69 about the applicant’s conduct at the hearing:

Mr. Edwards repeatedly voiced his lack of trust in Carillion and essentially accused them of a conspiracy to single him out for unusual treatment, to instil fear of him among his fellow employees, and to visit undeserved discipline on him. He declined to divulge the details of these beliefs, suggesting in response to cross-examination on the point that he was contemplating further litigation, in addition to his pending WSIB appeal and his application before the Human Rights Tribunal of Ontario.

9On April 3, 2014, the applicant filed an RFOP, which requested that the Application be reactivated because the arbitration proceeding was completed.

10On May 16, 2014, the Tribunal issued a Case Assessment Direction, which directed that a preliminary hearing be held to address whether the Application should be reactivated and, if so, whether it should be dismissed pursuant to s. 45.1 of the Code on the basis that the arbitration proceeding appropriately dealt with its substance.

11The preliminary hearing took place on August 29, 2014. I heard the parties’ oral submissions and reserved my Decision.

12For the purposes of this Decision, I will assume without deciding that the Application should be reactivated.

ANALYSIS

13Section 45.1 of the Code and Rule 22 of the Tribunal’s Rules 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.

14Section 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.

15The 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.

16Section 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.

17In the case at hand, there was no dispute between the parties that the proceeding before the arbitrator was a proceeding within the meaning of s. 45.1 of the Code. As such, the main issue to be decided is whether the arbitrator appropriately dealt with the substance of the Application.

18In 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.

19In 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.

20In his submissions, the applicant stated that the arbitrator did not appropriately deal with the substance of the Application for two reasons. First, he and the Union are separate, and he did not have control over what the Union did at the hearing. For example, the Union should have requested damages for injury to dignity, feelings and self-respect, but failed to do so. Second, there are “inaccuracies” and “lies” in the award.

21The applicant also stated that the arbitrator found that he should not have been fired, and he should therefore now have the opportunity to argue before this Tribunal that he was fired contrary to the Code.

22I find that the arbitrator appropriately dealt with the substance of the Application. In my view, the applicant is trying to relitigate what is essentially the same dispute. There is no dispute that the arbitrator had jurisdiction to decide human rights issues, and that the applicant and his Union had an opportunity to know the case to be met and had the chance to meet it. Furthermore, the legal issue that was decided by the arbitrator (whether the respondent had just cause to dismiss the applicant) is essentially the same as the main legal issue before this Tribunal (whether the respondent violated the Code when it terminated the applicant’s employment). Although the award does not mention the Code, the grievance, which alleged that the respondent had violated, among other things, the “No Discrimination” provision of the collective agreement, was before the arbitrator. Moreover, the Code is not separate from just cause; rather, it infuses this concept and is an important part of it. See Paterno v. Salvation Army, 2011 HRTO 2298 (“Paterno”) at para. 28.

23I will address the applicant’s arguments in order. First, I do not accept that he and the Union were separate. The Union is a typical example of what the Supreme Court identified in Figliola as a “privy”. Furthermore, if the applicant believes that his Union unfairly represented his case, he can bring a duty of fair representation claim against it. It is not appropriate for this Tribunal to determine whether the applicant’s Union failed in its duty of fair representation.

24Second, the applicant cannot litigate before this Tribunal what he calls the “inaccuracies” and “lies” in the arbitrator’s award. It is not appropriate for this Tribunal to sit in review of the arbitrator’s award.

25Third, with respect to the applicant’s argument that the arbitrator found that he should not have been fired, and he should therefore now have the opportunity to argue before this Tribunal that he was fired contrary to the Code, a party is expected to bring his entire case forward and not split it up into several pieces, adding to the cost and uncertainties associated with duplicative litigation. See Cunningham v. CUPE 4400, 2011 HRTO 658 at para. 57. It is obvious from the arbitrator’s observation of the applicant’s conduct at the hearing, as set out in para. 69 of his award, and the applicant’s argument before this Tribunal, that the applicant is trying to split up his case into several different pieces and litigate them in different fora.

26With respect to the other allegations in the Application (the respondent discriminated against the applicant by failing to pay him during sick leaves, and requiring him to sign “consent to release” forms following sick leaves), the applicant did not mention them in his submissions. In any case, my view is that this was part of his attempt to split up his case into several different pieces and litigate them in different fora, which is impermissible.

27The applicant had a choice. He could have foregone the benefits that he had as an employee under a collective agreement – including just cause protection, the grievance procedure, and representation by union counsel – by not pursuing a grievance or arbitration. He could have then proceeded before this Tribunal with his human rights Application without then being affected by the arbitrator’s award. However, having chosen to pursue the benefits of the collective agreement and the grievance process, he must accept the consequences of that choice. See Paterno, above, at para. 33.

ORDER

28The Application is dismissed.