Taylor v. Ontario (Community Safety and Correctional Services), 2016 HRTO 1306

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

James Taylor

Applicant

-and-

Her Majesty the Queen in Right of Ontario, as represented by the Ministry of Community Safety and Correctional Services and Christina Danylchenko

Respondents

DECISION

Adjudicator: Jennifer Scott

Date: October 7, 2016

Citation: 2016 HRTO 1306

Indexed as: Taylor v. Ontario (Community Safety and Correctional Services)

APPEARANCES

James Taylor, Applicant

Self-represented

Ministry of Community Safety and Correctional Services and Christina Danylchenko, Respondents

Thomas Ayers, Counsel

Introduction

1The issue in this decision is whether the Application should be dismissed under section 45.1 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) because another proceeding has appropriately dealt with the substance of the Application and/or because the Application has no reasonable prospect of success. By Case Assessment Direction dated March 4, 2016, the Tribunal directed a preliminary hearing on these two issues. The preliminary hearing was held by teleconference on September 23, 2016.

2For the reasons that follow, I find the Application should be dismissed.

background

3The applicant was employed by the corporate respondent (the “Ministry”) as a Correctional Operational Manager (“COM”) at the Elgin-Middlesex Detention Centre in London.

4In or around 2010, the applicant was placed in the Ministry’s attendance management program. The applicant asserts that his absences from work were disability-related.

5In 2012, the applicant submitted an Expression of Interest to work at the South West Detention Centre in Windsor (“SWDC”).

6On April 14, 2014, the applicant filed a grievance with the Public Service Grievance Board (the “PSGB”). In the grievance, the applicant complained about not being transferred to the SWDC. He stated the following in his grievance:

I feel I am being discriminated against and have several reasons why this may be.

7In July 2014, the applicant requested a compassionate/medical transfer to the SWDC.

8On November 17, 2014, the applicant was transferred to the SWDC on a compassionate basis. He was not provided with relocation expenses.

9The grievance hearing took place on August 13, 2015. At the commencement of the hearing, the Ministry brought a preliminary motion to dismiss the complaints because the particulars did not disclose a prima facie case and failed to establish a breach of the applicant’s terms or conditions of employment. The issue before the grievance arbitrator was whether a term or condition of the applicant’s employment had been violated relating to his transfer to the SWDC and if so, whether he was entitled to relocation expenses. The applicant withdrew his allegations of discrimination and reprisal at the hearing.

10The grievance was dismissed on September 17, 2015. The arbitrator held the applicant had failed to establish a breach of his employment. In making this finding, the arbitrator stated the following:

I appreciate that Mr. Taylor has had a longstanding interest in moving facilities and that he does not believe that his employer assisted him in meeting his goals. I also understand that this would be frustrating and somewhat demoralising. Nonetheless, the Board has repeatedly held that it cannot provide a remedy in situations where there is no violation of any specific terms of employment but where the employee nonetheless feels that they have been treated unfairly. As explained by the Board in Kanerva, supra, at para 29, “general commitments to trust and fairness are not specific enough to translate into an enforceable contractual term”.

11After receiving the grievance arbitration decision, the applicant filed this Application with the Tribunal on November 3, 2015. He makes the following allegations of discrimination (which were clarified during the preliminary hearing):

a. The Ministry did not follow its practices and policies, specifically its Talent Management Process and Re-assignment Protocols, because the applicant was in the attendance-management program. As a result, the applicant was not transferred to the SWDC when he should have been transferred;

b. The delay in transferring the applicant resulted in the applicant being denied training;

c. The applicant will be denied promotional opportunities at the SWDC because the next highest rank requires employees in that position to work 12-hour shifts. The applicant works eight-hour shifts as an form of accommodation;

d. The applicant has been subject to the attendance-management program.

12The applicant sought monetary compensation in the amount of $10,000 in the Application.

analysis

Transfer to the SWDC

13The applicant submits that he was discriminated against when the Ministry failed to follow the Talent Management Process and Re-assignment Protocols relating to the applicant’s transfer to the SWDC. As a result, the applicant was denied training at the SWDC.

14The Ministry submits the applicant’s allegations relating to his transfer to the SWDC should be dismissed under section 45.1 of the Code. The respondent submits the issue of the applicant’s transfer to the SWDC was before the arbitrator and the applicant was required to put his best foot forward in that proceeding. He cannot now come to the Tribunal to raise arguments that should have been put to the arbitrator. The Ministry submits further that the Application was filed with the Tribunal after the arbitrator denied the applicant’s request for relocation expenses in relation to his transfer to the SWDC. The Ministry believes the applicant is using the Tribunal process to obtain those expenses. It asserts the compensation sought in the Application is the same remedy claimed in the arbitration proceeding.

The Law on Section 45.1 of the Code

15Section 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.

16Section 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. These doctrines are applied to avoid a multiplicity of proceedings on the same issue, and to protect the integrity of the administration of justice, all in the name of fairness. It applies even though the strict requirements of issue estoppel may not be met. See British Columbia (Workers' Compensation Board) v. Figliola, 2011 SCC 52 at paras. 24-25.

17In Figliola at para. 37, the Supreme Court of Canada stated that a tribunal should ask itself the following questions in assessing whether the substance of a complaint has been dealt with in another proceeding:

Relying on these underlying principles leads to the Tribunal asking itself whether there was concurrent jurisdiction to decide human rights issues; whether the previously decided legal issue was essentially the same as what is being complained of to the Tribunal; and whether there was an opportunity for the complainants or their privies 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. All of these questions go to determining whether the substance of a complaint has been “appropriately dealt with”. 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.

18In Claybourn v. Toronto Police Services Board, 2013 HRTO 1298; judicial review of joined application refused Ontario (MCSCS) v. DeLottinville, 2015 ONSC 3085 (Div. Ct.), the Tribunal applied the Supreme Court’s decision in Penner v. Niagara (Regional Police Services Board), 2013 SCC 19, and found that in deciding whether another proceeding appropriately dealt with the substance of a human rights claim pursuant to section 45.1, the Tribunal must consider not only whether the issue before the Tribunal was decided in another proceeding, but also whether it would be unfair in all of the circumstances to dismiss all or part of an application in light of the other proceeding, taking into account the nature of the other proceeding, the applicant’s stake in it, and the parties’ reasonable expectations about the impact the prior proceeding would have on their broader legal rights.

Application of the Law

19It is well established that a labour arbitration is a “proceeding” within the meaning of the Code. See Gavin v. London Health Sciences Centre, 2016 HRTO 725. The only issue in this case is whether the substance of these allegations was appropriately dealt with by the arbitrator.

20The issue before the arbitrator was the applicant’s transfer to the SWDC and his entitlement to relocation expenses. In deciding that issue, the arbitrator considered the Ministry’s Reassignment Protocol, the same policy relied upon by the applicant in this Application. At the arbitration, the applicant argued there were a number of ways the Ministry could have transferred him and provided relocation expenses, including a health re-assignment. If the applicant believed the Ministry treated his transfer differently because he was on attendance management, that issue should have been put to the arbitrator.

21During the summary hearing, the applicant stated that he withdrew his allegations of discrimination at the arbitration hearing because he did not have disclosure of the people who were on the Expression of Interest List, the people who had been transferred to the SWDC, and the people hired at the SWDC. The difficulty with this argument is that the arbitrator accepted all of the facts that the applicant put forward as true and could be proved. As such, the applicant did not require disclosure in order to make his discrimination arguments. Notwithstanding this fact, the applicant withdrew his allegations of discrimination and reprisal at the arbitration hearing.

22Parties should not be permitted to restrict Code arguments in labour arbitration so that they can be pursued later before the Tribunal. This is known as “splitting one’s case” and is not permitted by the Tribunal. In this case, to allow the applicant to assert new allegations relating to his transfer to the SWDC, in the face of a proceeding about that very issue, is contrary to the intent of section 45.1 of the Code. As the Tribunal stated in Paterno v. Salvation Army, Centre of Hope, 2011 HRTO 2298 at para. 28:

It is not analytically correct or appropriate to ask an arbitrator to ignore possible Code breaches in finding whether there was cause, or to allow a grievor to save for later his or her Code objections to the cause for discipline. This would be contrary to the policy intentions of s. 45.1 in preventing duplicative litigation. A grievor who pursues a grievance that discipline is without cause should raise all the arguments for that belief in the collective agreement proceeding he or she has commenced.

See also: Bhol v. Coca-Cola Refreshments Canada Co., 2014 HRTO 96, and Howell v. National Steel Car Ltd., 2012 HRTO 1589.

23The substance of these allegations relates to the applicant’s transfer to the SWDC. The applicant’s transfer to the SWDC was dealt with by the arbitrator. Fairness dictates that there is finality to this issue and that the applicant not be permitted to re-litigate it.

24Finally, the applicant chose to pursue his grievance and arbitration with the assistance of union counsel. He could have foregone the grievance process and proceeded with his human rights Application before the Tribunal. Having chosen the grievance process, he must accept the consequences of that choice. As the Tribunal stated in Paterno at para. 33, “An applicant has a choice about where to proceed, but does not have the option to require an employer to litigate the same issues twice”. In this case, the applicant cannot require the respondent to re-litigate his transfer to the SWDC as it would be an abuse of process and contrary to the purpose of section 45.1 of the Code to allow him to do so.

25These allegations are dismissed under section 45.1 of the Code and as an abuse of process.

Denied Promotion

26The applicant argues he will be denied a promotion because he will be unable to work 12-hour shifts, the shifts required in the promotion. The applicant works eight-hour shifts as a form of accommodation.

27This complaint is speculative and for that reason, it has no reasonable prospect of success. The applicant has neither applied for nor been rejected for the promotion. As such, he has not experienced any adverse treatment, the basis for a complaint of discrimination. This allegation is dismissed as having no reasonable prospect of success.

Attendance Management Program

28The applicant’s final allegation is that he has been discriminated against because he was placed in the Ministry’s attendance management program.

29In general, the Code does not prohibit an employer from placing an employee in an attendance management program where the intention is to assist the employee in maintaining regular attendance and where the employer is otherwise fulfilling its duty to accommodate disability-related absences, in accordance with the Code. See Rehman v. Waterloo (Municipality), 2014 HRTO 875 at para. 35.

30In Klonowski v. Ontario (Community Safety and Correctional Services), 2012 HRTO 1568, the Tribunal found that the applicant had no reasonable prospect of proving that her placement in the employer’s attendance management program, based on the applicant’s disability-related absences, was discriminatory. The attendance management program required the applicant to meet with her employer to discuss her attendance, with a view to assisting the applicant to reduce her absences and to maintain regular attendance. It was not disciplinary. On that basis, the Tribunal found that the applicant had not been disadvantaged by her placement in the program and therefore had no reasonable prospect of proving that she had been discriminated against.

31The mere fact that the applicant has been placed in the Ministry’s attendance management program is insufficient to establish a claim of discrimination. This allegation has no reasonable prospect of success.

32For these reasons, the applicant’s allegations of discrimination are dismissed under section 45.1 of the Code and/or because they have no reasonable prospect of success.

order

33The Application is dismissed.