Meade v. National Steel Car Limited, 2016 HRTO 1383

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Peter Meade

Applicant

-and-

National Steel Car Limited

Respondent

-and-

United Steel Workers, Local 7135

Intervenor

INTERIM DECISION

Adjudicator: Jo-Anne Pickel

Date: October 25, 2016

Citation: 2016 HRTO 1383

Indexed as: Meade v. National Steel Car Limited

WRITTEN SUBMISSIONS

Peter Meade, Applicant

Wade Poziomka, Counsel

National Steel Car Limited, Respondent

Jane Gooding, Counsel

1This Interim Decision addresses the respondent’s requests to dismiss or defer consideration of the Application.

2In the Application, the applicant alleged that the respondent discriminated against him with respect to employment because of disability and reprised against him contrary to the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”).

3In its Response, the respondent requested that the Tribunal dismiss the Application for the following reasons: (1) on the basis that an arbitrator has exclusive jurisdiction over the human rights allegations made in the Application and (2) because the substance of the Application has been appropriately dealt with in the parties’ treatment of the grievances filed by the applicant’s union. In the alternative, the respondent requested that the Tribunal defer consideration of the Application pending the conclusion of the applicant’s appeal of certain decisions made by the Workplace Safety and Insurance Board (“WSIB”).

4The Applicant filed a Reply to the Response. However, he did not respond to the respondent’s requests to dismiss and/or defer the Application. By Case Assessment Direction dated September 14, 2016, I directed the applicant to respond to the respondent’s request to defer the Application. In particular, I directed the applicant to clarify which WSIB decisions in his case were currently under appeal and the issues raised in each of these appeals.

5The applicant responded that there are no outstanding appeals of WSIB decisions in his case.

Analysis

Request to dismiss based on exclusive arbitral jurisdiction

6The respondent submitted that the applicant’s allegations of discrimination fall under exclusive arbitral jurisdiction because the applicant is a unionized employee covered by a collective agreement. It made extensive submissions on this issue and therefore I address the issue in some detail below. In its submissions, the respondent relied upon the following Supreme Court of Canada decisions: Weber v. Ontario Hydro, 1995 CanLII 108 (SCC), [1995] 2 SCR 929 (“Weber”); Regina Police Assn. v. Regina (City) Police Commissioners, 2000 SCC 14; and Canada (House of Commons) v. Vaid, 2005 SCC 30 (“Vaid”). The respondent also relied upon a recent decision of the Manitoba Court of Queens Bench: Northern Regional Health Authority v. Manitoba Human Rights Commission et al. 2016 MBQB 89 (“Northern Regional”). Significantly, the respondent did not address the Court of Appeal for Ontario’s decision in Naraine v. Ford Motor Co of Canada, 2001 CanLII 21234 (ON CA) (“Naraine”).

7In my view, the Court of Appeal’s decision in Naraine definitively decided the issue of the Tribunal’s jurisdiction over applications filed by unionized employees. In Naraine, the Court of Appeal held that adjudicators under the Code have jurisdiction to deal with human rights claims filed by unionized employees. The Tribunal has consistently followed the Court of Appeal’s decision in Naraine to find that it has concurrent jurisdiction over human rights claims filed by unionized employees: see discussion in Monck v. Ford Motor Company of Canada, 2009 HRTO 861 at para 8, and Snow v. Honda of Canada Manufacturing, 2007 HRTO 45 at para 14.

8The Court of Appeal decision in Naraine was decided before some relevant Supreme Court of Canada decisions on the jurisdiction of human rights tribunals to deal with complaints filed by unionized employees such as Vaid, above, and Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Quebec (Attorney General), 2004 SCC 39 at para. 14 (“Morin”). However, the Court of Appeal’s finding of concurrent jurisdiction in Naraine is consistent with the reasoning in those Supreme Court of Canada decisions.

9In Morin, the Supreme Court of Canada made clear that there is no presumption of arbitral exclusivity over all claims filed by unionized employees. The question in each case is whether the relevant legislation applied to the dispute at issue, taken in its full factual context, establishes that the labour arbitrator has exclusive jurisdiction over the dispute. See Morin at para. 14.

10The question is one of legislative intent. That is, whether the Legislature intended a particular dispute to be determined by a labour arbitrator, the Tribunal, or whether it intended both decision-makers to have concurrent jurisdiction over the matter. Morin establishes a two-step process to answer that question. First, a decision-maker must examine the relevant statutes and what they say about the jurisdiction of the two statutory decision-makers in question. Second, the decision-maker must look at the nature of the dispute, to see whether the legislation suggests it falls exclusively to either statutory decision-maker.

11In applying the first step in cases involving a jurisdictional determination as between two statutory decision-makers, it is necessary to consider the legislation governing both decision-makers. See Morin, paras. 16-19. In Naraine, the Court of Appeal reviewed the historical development of the statutory context governing the jurisdiction of human rights adjudicators and labour arbitrators in Ontario. As noted by the Court, s. 48(12)(j) of the Labour Relations Act provides arbitrators with the power to interpret and apply the Code. However, it does not provide arbitrators with exclusive jurisdiction to do so. See Naraine at para. 52.

12In Naraine, the Court of Appeal noted that, under s. 34(1) (a) of the Code, then in existence, the Ontario Human Rights Commission had the authority to decide, in its discretion, not to deal with a complaint where it was of the view that the complaint “could or should be more appropriately dealt with” under another Act. The Court held that the former s. 34(1)(a) of the Code and s. 48(12)(j) of the Labour Relations Act clearly demonstrated the Legislature’s intention that human rights adjudicators and labour arbitrators have concurrent jurisdiction over claims that arise from disputes under a collective agreement.

13In my view, the 2008 amendments to the Code reinforce the Court of Appeal’s conclusion that the Legislature intended that the Tribunal and labour arbitrators have concurrent jurisdiction over human rights claims filed by unionized employees. In 2008, s. 34(1)(a) was repealed and s. 45.1 was added to the Code. Under s. 45.1, the Tribunal has the power to dismiss applications only if, in its opinion, the substance of the application “has been” appropriately dealt with in another proceeding. These amendments reinforce the conclusion in Naraine that the Legislature intended the Tribunal to have concurrent jurisdiction over human rights claims, even if an employee “could or should have” raised them in another forum such as the arbitral forum.

14Applying the second step in Morin, the decision-maker must look at the nature of the dispute to see whether the legislation suggests it falls exclusively within the jurisdiction of either statutory decision-maker. The Court held that the nature of the dispute in Morin suggested that it did not fall within a labour arbitrator’s exclusive jurisdiction: see para. 24. Most, if not all, applications to the Tribunal made by unionized employees against their employer involve both a labour relations aspect and a human rights aspect. In my view, it would be artificial to characterize the essential character of the applicant’s allegations in this case as relating exclusively to labour relations or to human rights. In reality, the essential character of the applicant’s claims encompasses both. In my view, the two-fold character of the applicant’s allegations reinforces the conclusion that the Tribunal has concurrent jurisdiction with a labour arbitrator over this Application, like all other applications filed with this Tribunal whose essential character encompasses both a labour relations and human rights aspect.

15Nothing in the Northern Regional, above, decision by the Manitoba Court of Queen’s Bench alters my conclusion in this case. That decision is of course not binding in Ontario. What is binding in Ontario is the Court of Appeal’s decision in Naraine.

16For all the above reasons, I find that the Application does not fall under exclusive arbitral jurisdiction.

Request to dismiss on the basis of grievances

17In the alternative, the respondent submitted that the Tribunal should dismiss the Application under s. 45.1 of the Code. That provision gives the Tribunal the authority to dismiss applications if another proceeding has appropriately dealt with the substance of an application.

Factual background

18In this case, the applicant’s union filed several grievances on his behalf which related to the allegations raised in his Application. The applicant’s union entered into written Minutes of Settlement with respect to two of the grievances. In August 2015, the applicant’s union and the respondent agreed to settle a grievance relating to a suspension issued to the applicant. The applicant did not sign this Memorandum of Settlement. In January 2016, the applicant’s union and the respondent entered into a settlement of a grievance relating to improper pay. The applicant also did not sign this settlement.

19Following the second step meetings between the applicant’s union and the respondent with respect to the applicant’s other grievances, the union advised the respondent that it would be referring the grievances to arbitration. These grievances included grievances alleging harassment and discrimination, failure to accommodate, discrimination, improper supervision and improper pay. Prior to proceeding to an arbitration, the parties agreed to attempt to resolve the grievances with the assistance of a mediator appointed by the Ministry of Labour. Ultimately, the union advised the respondent that it considered all of the grievances settled and withdrew them.

Findings

20I agree with the respondent that, under the Tribunal’s case law, a settlement may constitute a proceeding for the purposes of s. 45.1 of the Code. However, I do not agree that the settlements in this case appropriately dealt with the substance of the applicant’s Application.

21The respondent submitted that a mediation occurred with respect to the majority of grievances. It argued that all the grievances that were not subject to Minutes of Settlement were withdrawn and deemed settled. Accordingly, the respondent argued that the applicant should not be given another “bite at the cherry” by being permitted to proceed before this Tribunal. In support of its position, the respondent sought to rely upon the following Tribunal decisions: Virgin v. Dollar, 2009 HRTO 899; Vere v. The Canadian Auto Workers Local 4207, 2011 HRTO 748; and Van Barneveld v. IOOF Seniors Home, 2009 HRTO 448.

22All of the above cases are distinguishable in that the applicants in each of those three cases signed the settlement arrived at between them and their employer. In cases such as the present one, the Tribunal has held that it would only dismiss applications – either under s. 45.1 or as an abuse of process – if the applicant has explicitly or implicitly voluntarily agreed to settle their Code-related claims. Certainly, I agree with the respondents that finality in settlements is important. However, a settlement is not final and binding upon a party unless it is also voluntary. See, for example, Ma v. University of Toronto, 2015 HRTO 1551 at paras. 47-51.

23There is no indication in any of the materials filed by the parties that the applicant either explicitly or implicitly agreed to the two written settlements entered into between his union and the respondent. There is also no indication that the applicant himself, as distinct from his union, considered the grievances settled and consented to their withdrawal.

24For the above reasons, I do not find it appropriate to dismiss the Application under s. 45.1.

Request to defer due to wsib proceeding

25In the further alternative, the respondent requested that the Tribunal defer consideration of the Application pending the conclusion of the applicant’s appeals of decisions by WSIB case managers. The applicant has confirmed that there are no pending appeals of WSIB decisions and has filed correspondence from the WSIB confirming this. Therefore, it is not appropriate to defer consideration of the Application on this basis.

Order

26For the reasons set out above, the respondent’s requests to dismiss or defer the Application are denied. Since both parties agree to mediation, the Tribunal’s Registrar will schedule a mediation in this case.