S.N. v. Native Child and Family Services of Toronto, 2016 HRTO 1428

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

S.N.

Applicant

-and-

Native Child and Family Services of Toronto

Respondent

DECISION

Adjudicator: Josée Bouchard Date: November 3, 2016 Citation: 2016 HRTO 1428 Indexed as: S.N. v. Native Child and Family Services of Toronto

APPEARANCES

S.N., Applicant Self-represented

Native Child and Family Services of Toronto, Respondent Mark Ellis, 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”), alleging discrimination with respect to employment on the basis of disability and reprisal or threat of reprisal.

2On April 13, 2015, the Tribunal deferred the Application pending the completion of a union grievance proceeding.

3On February 26, 2016, Arbitrator Barry B. Fisher released his Arbitration Award (“Award”) in the grievances filed by Unifor Local 2488, for the applicant, against the Native Child and Family Services of Toronto.

4On May 24, 2016, the Tribunal reactivated the Application and informed the parties that it would schedule a preliminary hearing to consider whether the Application should be dismissed because another proceeding has appropriately dealt with the substance of the Application.

5On October 2, 2016, the applicant filed a Request for an Order During Proceedings requesting to amend the Application (“request to amend”) to include allegations that occurred following the release of the Arbitration Award.

6The Tribunal held the preliminary hearing on October 17, 2016, to hear submissions on the following:

1. Should the Tribunal grant the applicant’s request to amend the Application by adding allegations of incidents that occurred following the release of the Award?
2. Does section 45.1 of the Code apply because another proceeding, namely the grievance, has appropriately dealt with the substance of the Application? If so, should the Application be dismissed?

7On October 20, 2016, following the preliminary hearing, the applicant wrote to the Tribunal seeking the anonymization of her name to protect the confidentiality of personal information, including information about her mental health.

Anonymization Request

8Before considering the issues raised at the preliminary hearing, I address the request for anonymization.

9The applicant requests the anonymization of her name due to the highly sensitive health information related to her case. The respondent consents to the anonymization.

10The Tribunal’s Practice Direction on Anonymization of HRTO Decisions provides that the Tribunal may anonymize the name of a party to protect the confidentiality of personal or sensitive information where it is appropriate to do so. However, such an order is only made in exceptional circumstances. When determining whether to make an anonymization order, the Tribunal’s general approach is to balance the public interest in freedom of expression and open justice against any significant consequences of identifying the person requesting anonymization. The Tribunal has granted requests for anonymization where highly sensitive medical information will be disclosed during the proceeding and/or where the Tribunal is persuaded that a party may suffer significant stigma as a result of the proceeding. See Mancebo-Munoz v. NCO Financial Services Inc., 2013 HRTO 974, A.B. v. University of Waterloo, 2015 HRTO 1126, and S.F. v. Toronto Transit Commission, 2015 HRTO 1571.

11I grant the applicant’s request for anonymization. Although this is a preliminary hearing in which the parties did not present evidence, my decision refers to the Award in which Arbitrator Fisher granted anonymization as follows:

As this grievance involves personal information regarding many employees of the Employer, the parties have consented to the writing of this award without the use of any actual names in regards to employees of the Employer or of the Grievor.

12This Tribunal’s release of the applicant’s identification would defeat Arbitrator Fisher’s decision to protect the applicant from the potential negative consequences of identification. The request for anonymization is granted.

Factual Background

13The applicant has been employed as a Finance Assistant with the respondent since 2006. Her last day at work was February 14, 2014, when she began a medical leave.

14The applicant filed two grievances in 2014; the first relates to allegations that the respondent failed to accommodate her disability by refusing to move her work location; the second relates to allegations that she was harassed by various employees of the respondent.

15Arbitrator Fisher held a ten-day hearing. Unifor Local 2488 represented the applicant. The parties presented comprehensive submissions and evidence, including medical evidence. The Award addresses the following questions:

a. whether the applicant has a disability; b. whether the respondent failed its duty to accommodate the applicant; and c. whether the applicant was harassed by colleagues.

16On February 26, 2016, Arbitrator Fisher dismissed the allegations of failure to accommodate and found that the applicant had not been subjected to harassment in the workplace. He found, however, that the applicant should have been paid wages during the internal investigation of the harassment complaints and he awarded this compensation.

17The applicant filed this Application on February 10, 2015, alleging that the respondent failed to accommodate her and that she was harassed by colleagues between February 13, 2014, and the date of the Application.

Decision and Analysis

Request to Amend

18In her request to amend, the applicant seeks to add allegations that the respondent failed to accommodate her return to work after the release of the Award, in violation of Arbitrator Fisher’s note in the Award that reads as follows:

In closing, I wish to remind the parties that the Grievor remains an employee of the Employer and that the duty to accommodate her disability is a continuing one. Therefore [if] the Grievor’s medical condition were to improve so that she could return to work with appropriate and meaningful accommodation, I fully expect that the employer, the Union and the Grievor will engage in a full and proper accommodation discussion.

19The applicant argues that the respondent’s failure to comply with the Award is directly related to her Application.

20The respondent argues that permitting an amendment of the Application at this late stage in the process and only two weeks before the preliminary hearing is contrary to the principles of fairness and would be prejudicial to the respondent.

21The respondent maintains that the nature of the Application concerns allegations of harassment against a number of co-workers while the request to amend relates to the conditions required for the applicant’s return to work. The respondent argues that granting the request to amend would be prejudicial to it as it raises new allegations, is based on incidents that occurred after the initial Application and is based on a subsequent Award. To permit these amendments would prohibit the fair, just and expeditious resolution of this matter.

22Rule 1.7(c) of the Tribunal’s Rules of Procedure states that in order to provide for a fair, just and expeditious resolution of any matter before it the Tribunal may “allow any filing to be amended.”

23In determining requests to amend applications under section 34 of the Code, the Tribunal generally considers the nature of the proposed amendments, the reasons for the amendments, the timing of the request to amend, and the prejudice to the respondent. See R.M. v. Toronto Police Services Board, 2013 HRTO 73 (“R.M.”), Dube v. Canadian Career College, 2008 HRTO 336, Wozenilek v. 7-Eleven Canada Inc., 2009 HRTO 926, and Dunford v. Holiday Ford Sales, 2009 HRTO 1563.

24In R.M., the Tribunal dismissed a request to amend where the request would considerably expand the scope of the hearing by adding numerous new allegations that the respondents would be required to respond to at a late stage in the Tribunal’s process. In that case, the applicant brought his request to amend approximately five weeks before the start of the hearing and more than two years after the original Application was filed.

25I find that the nature of the request to amend is different than the allegations made in the Application. The Application refers to the work environment that led to the applicant’s medical leave at the beginning of 2015 and includes allegations that her co-workers harassed her and that the respondent failed to accommodate her by refusing to move her work location. The request to amend refers to the alleged failure of the respondent to implement the 2016 Award by inappropriately assessing the conditions required for the applicant’s return to work and failing to accommodate new requests to return to work based on new medical evidence.

26In addition, filing a request to amend so soon before the preliminary hearing is contrary to the principles of fair process set out in the Rules of Procedure and this Tribunal’s jurisprudence. See R.M., above.

27I find that granting a request to amend that was not filed in a timely manner and that includes new allegations would cause prejudice to the respondent.

28The request to amend is dismissed.

[Section 45.1](https://www.canlii.org/en/on/laws/stat/rso-1990-c-h19/latest/rso-1990-c-h19.html) of the [Code](https://www.canlii.org/en/on/laws/stat/rso-1990-c-h19/latest/rso-1990-c-h19.html)

29The applicant submits that the Award does not address the human rights issues under the Code. The applicant believes that the Award is incomplete and incorrect. She is seeking to reopen the issues based on her dissatisfaction with the outcome of the Award. She argues that the Award does not consider whether the respondent engaged in a discussion with her to identify how best to accommodate her or whether the alternate accommodations proposed by the union were appropriate. The applicant maintains that Arbitrator Fisher sided with the respondent’s lawyer during the proceedings.

30The respondent maintains that the union actively participated, as the applicant’s representative, in the grievance process. Because the grievances alleged violations of the Code and the applicant’s employment rights, the parties, with the applicant’s cooperation, were particularly thorough in presenting their case. The respondent submits that Arbitrator Fisher expressly informed the applicant that he would be addressing the human rights complaints and the applicant acknowledged that she was fully aware and agreed with that approach. For that reason, the parties filed the Application and Response in this matter as exhibits in the arbitration hearing. The respondent argues that the applicant is simply trying to re-litigate a matter that has been extensively addressed in the arbitration proceeding.

31Section 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.

32In interpreting this section, the Tribunal is guided by two decisions of the Supreme Court of Canada: British Columbia (Workers’ Compensation Board) v. Figliola, 2011 SCC 52 (“Figliola”), and Penner v. Niagara (Regional Police Services Board), 2013 SCC 19 (“Penner”). This 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 (“Claybourn”).

33In Post v. Stevens Resources Group, 2014 HRTO 1470 (“Post”), the Tribunal reviewed these decisions and concluded:

According to Figliola and Penner, once it has been confirmed that concurrent jurisdiction exists to decide the human rights issues, there are three primary questions to consider in order to determine if another proceeding has appropriately dealt with the substance of the Application. These are:

1. 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;
2. whether the previously decided legal issue was essentially the same as what is being complained of to the Tribunal; and
3. whether it would be unfair to apply the doctrine of issue estoppel in the particular circumstances of the case?

34There is no question that the Award arises from a proceeding. The Tribunal has long accepted that labour arbitration constitutes a proceeding pursuant to section 45.1 of the Code. See Chivers v. National Steel Car Ltd., 2015 HRTO 843 at para. 30, and Balchand v. Toronto (City), 2016 HRTO 736 at para. 12.

35I turn now to the three-pronged criterion outlined above.

36I find that the applicant clearly knew the case she had to meet and had full opportunity to present evidence and make submissions concerning those issues. The applicant was represented by her union. Arbitrator Fisher informed the parties and the applicant that he would address the human rights issues. The parties and the applicant consented to the approach and they presented thorough evidence and made submissions regarding the human rights issues in the arbitration proceeding. I find that the legal issues decided in the Award were essentially the same as what is complained about before the Tribunal. See Post, above.

37Not only did the arbitrator have concurrent jurisdiction with this Tribunal to apply the Code, he had the power to award the remedies sought by the applicant. The Award addresses the substance of the Application, namely whether the respondent failed to accommodate the applicant’s disability by refusing to move her work location, and whether the applicant was harassed by the respondent’s employees. The substance of the proceedings is so similar that the Application and Response before this Tribunal were entered as exhibits in the arbitration hearing.

38In addition to the above-mentioned considerations, Penner, above, requires the Tribunal to consider whether it would be unfair for the proceeding before Arbitrator Fisher to preclude the applicant from bringing the Application to this Tribunal.

39I find that none of the indicators of unfairness identified in Penner applies here.

40When an adjudicative body decides an issue within its jurisdiction, it and the parties who participated in the process are entitled to assume that, subject to appellate or judicial review, its decision will not only be final, it will be treated as such by other adjudicative bodies. The procedural or substantive correctness of the previous proceeding is not meant to be bait for another tribunal with a concurrent mandate. Figliola, above at para. 38.

41I conclude that the Award dated February 26, 2016 in the case between Native Child and Family Services of Toronto and Unifor Local 2488 appropriately dealt with the substance of the Application.

42Accordingly, the Application is dismissed.

Order

43The Tribunal orders as follows:

1. The request for anonymization is granted;
2. The request to amend the Application is denied;
3. The Application is dismissed.

Dated at Toronto, this 3rd day of November, 2016.

“Signed by”

Josée Bouchard Vice-chair