Belsky v. Ontario (Government and Consumer Services), 2016 HRTO 272

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Michael Belsky

Applicant

-and-

Her Majesty the Queen in right of Ontario as represented by the Ministry of Government and Consumer Services

Respondent

DECISION

Adjudicator: Sheri Price

Date: February 29, 2016

Citation: 2016 HRTO 272

Indexed as: Belsky v. Ontario (Government and Consumer Services)

APPEARANCES

Michael Belsky, Applicant

Self-represented

Her Majesty the Queen in right of Ontario as represented by the Ministry of Government and Consumer Services, Respondent

Cathy Phan, Counsel

Introduction

1This is an Application in which the applicant alleges that the respondent employer discriminated against him because of age with respect to employment, contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). In particular, the applicant alleges that the respondent discriminated against him because of his age by transferring him to a less desirable job in October 2013 and by denying him a mentorship opportunity in March 2014.

2The applicant was approximately 66 years old, and had been employed in the Ontario Public Service for approximately 15 years, in October 2013, when the respondent informed the applicant, then an “Application Analyst/Developer” in the Architecture, Information Management and Project Management Office, that, effective immediately, he would be reporting to Service Management in the Business and Service Management Branch. Although the respondent’s October 2013 letter to the applicant stated that there was to be no change in the applicant’s work location, work duties, position description, salary or benefits, the applicant alleges that his job did change. The applicant alleges that he did not have any exposure to service management prior to October 2013 and that he was transferred to a less desirable job and duties based on discriminatory assumptions about the applicant’s abilities, because of his age.

3The applicant submits that, following his transfer to a service management role, there was a significant discrepancy between what his job was supposed to be, according to his job title and job description, and what it actually was. In March 2014, the applicant’s job was retitled “Service Management Analyst” with a job description that the applicant submits had little in common with his roles and responsibilities in the Architecture, Information Management and Project Management Office.

4In the Application that he filed with the Tribunal, the applicant also alleges that the respondent discriminated against him by denying him mentorship opportunities. In particular, the applicant pleads that he applied to participate in a long-standing mentorship program offered by the respondent and received an email stating that he and another candidate had been successfully matched with a particular mentor in Architecture, Information and Project Management in February 2014. However, in March 2014, the applicant’s participation in the mentorship program was cancelled. The applicant alleges that the denial of a mentorship opportunity was also linked to his age and therefore discriminatory.

5On or about January 21, 2014, the applicant filed a grievance through his trade union, Ontario Public Service Employees Union, alleging, among other things, that the respondent’s decision to transfer him to a service management role was discriminatory based on his age. That grievance was subsequently referred to arbitration and ultimately determined by a Vice-chair of the Grievance Settlement Board (“GSB”) pursuant to the provisions of the Crown Employees Collective Bargaining Act, 1993, S.O. 1993, c. 38 (“CECBA”).

6On December 1, 2015, the Tribunal held a preliminary hearing to determine whether all or part of the substance of the Application ought to be dismissed under s.45.1 of the Code on the basis that it had been appropriately dealt with in the arbitration hearing before the GSB. In addition, pursuant to an August 2015 Case Assessment Direction, the December 1, 2015 hearing was to determine whether part of the Application, which had not been addressed in the GSB proceeding, ought to be dismissed on the basis that it had no reasonable prospect of success.

7For the reasons that follow, I find that, except for the one allegation relating to the alleged denial of a mentorship opportunity, the substance of the applicant’s age discrimination claim was appropriately dealt with in a hearing before the GSB. It is dismissed accordingly under s.45.1 of the Code.

8The allegation that the applicant was denied a mentorship opportunity because of his age was not raised before the GSB or determined by it. Accordingly, there is no dispute that such allegation was not appropriately dealt with by the GSB within the meaning of s.45.1 of the Code. However, for the reasons set out below, I find that the applicant has no reasonable prospect of success in proving that the denial of the mentorship opportunity was based in whole or in part on the applicant’s age. The allegation regarding the denial of a mentorship opportunity is dismissed for this reason.

9In the result, the Application is dismissed in its entirety.

Analysis and decision

Whether all or part of the Application was appropriately dealt with by another proceeding (s. 45.1)

10The respondent submits that, other than the allegation regarding the mentorship program, the applicant’s age discrimination claim ought to be dismissed under s.45.1 of the Code on the basis that it was “appropriately dealt with” in the grievance arbitration proceeding before the GSB. Section 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.

11In determining whether an Application ought to be dismissed under s.45.1 of the Code, the initial focus is on whether the issues in the human rights Application were decided in another proceeding by an adjudicator with jurisdiction to interpret and apply the Code, and in which proceeding the applicant knew the case to be met and had a chance to meet it. If so, the principle of finality prevents the applicant from relitigating the issues in the human rights Application in an attempt to obtain a different outcome than the one obtained in the earlier proceeding: British Columbia (Worker’s Compensation Board) v. Figliola, 2011 SCC 52, [2011] 3 S.C.R. 422, at para. 37.

12However, that is not an end to the matter. As both parties point out, even where the above-noted elements are present, the Tribunal may decline to dismiss an Application under s.45.1 if it would be unfair in all of the circumstances to do so. Some of the factors that may be taken into account in balancing the principles of finality and fairness include, but are not necessarily limited to, the purpose of the other proceeding, the applicant’s stake in it, the parties’ reasonable expectations about the impact the prior proceeding would have on their broader legal rights, whether the relevant statutory scheme contemplates parallel proceedings, and the broader policy implications of using the results of another proceeding as a basis to dismiss an Application under the Code: Penner v. Niagara (Regional Police Services Board), 2013 SCC 19 (“Penner”), as applied in Claybourn v. Toronto Police Services Board, 2013 HRTO 1298 and K.M. v Kodama, 2014 HRTO 526, both upheld on judicial review in Ontario (Correctional Services and Community Safety v. De Lottinville, 2015 ONSC 3085 (Div. Ct.); Ormesher v. Schwarz Law LLP, 2014 HRTO 1757. (With respect to the policy implications of dismissing a claim based on a previous administrative proceeding, see also Minott v. O'Shanter Development Company Ltd., 1999 CanLII 3686 (ONCA)).

13As noted above, in January 2014, the applicant’s trade union filed a grievance on the applicant’s behalf alleging, among other things, that the applicant’s transfer from his position with the Architecture, Information Management and Project Management Office to the Service Management branch was based on the applicant’s age and therefore discriminatory. The grievance was referred to the GSB for determination, which issued a decision dismissing the applicant’s age discrimination claim.

14In its December 2014 decision in respect of the applicant’s grievance, the GSB found that, even if the facts alleged by the applicant’s trade union were assumed to be true, there was no basis to find that the respondent had discriminated against the applicant because of his age by transferring him to the Service Management branch. Specifically, the GSB found that there was no objective evidence from which the GSB could infer that the respondent’s actions were linked to the applicant’s age. Referring to the alleged facts upon which the applicant’s age discrimination claim was based, the GSB stated:

Accepting the foregoing assertions, that may at best show that the grievor was of the genuine belief that his transfer was in whole or part because of his age. However, the assertions are simply not capable of leading to a finding, even inferentially, that he was discriminated against because of his age.

15As noted above, the main allegation in the applicant’s human rights Application is that the applicant was transferred from his position in the Architecture, Information Management and Project Management Office to a less desirable position in the Service Management branch because of his age. This is precisely the same claim that was determined by the GSB in its December 2014 decision. It is clear, then, that the substance of the issues in the human rights Application (again, leaving aside the mentorship allegation, which is addressed below) were decided by the GSB in the proceeding before it.

16To be fair, the applicant does not seem to dispute that the issues in his human rights Application were “dealt with” by the GSB. However, the applicant disputes that such issues were “appropriately” dealt with, within the meaning of s.45.1 of the Code. In particular, the applicant contends that the GSB made a number of mistakes in adjudicating his age discrimination claim. The applicant argues that the facts of his case were not properly evaluated by the adjudicator and also that the ultimate decision was not fair.

17In addition, the applicant suggested at the December 1, 2015 hearing that the Vice-chair who dismissed his grievance, Vice-chair Dissanayake, was not able to decide his grievance objectively because an Employee Relations Advisor with the same last name as the Vice-chair was involved in responding to the applicant’s grievance on the respondent’s behalf. In this regard, the applicant points to a November 12, 2014 letter from the union’s legal counsel to the Employee Relations Advisor in question, in which the union sought the production of certain documents in relation to the applicant’s grievance. The applicant alleges that the Employee Relations Advisor refused to produce the documents in question with the result that the applicant could not properly present his case before the GSB. However, the parties agree that the respondent’s alleged failure to produce relevant documents was not raised at the hearing before the GSB.

18Having considered the parties’ submission, I find that the substance of the Application (except for the mentorship allegation) was appropriately dealt with by the GSB, within the meaning of s.45.1 of the Code.

19In determining whether another proceeding has “appropriately dealt with” the substance of an Application within the meaning of s.45.1 of the Code, the issue is not whether the adjudicator in the other proceeding has correctly decided the human rights issues raised in the Application, but whether the applicant has had the opportunity to have his human rights issues considered by an adjudicator with jurisdiction to interpret and apply the Code: Noble v. York University, 2009 HRTO 1201 at para. 31. See also Gilinsky v. Peel District School Board, 2011 HRTO 2024; Campbell v. Toronto District School Board, 2008 HRTO 62; Delos Santos v. Maple Lodge Farms, 2009 HRTO 1690.

20In this case, there is no question that, in dealing with the applicant’s grievance, the GSB had full jurisdiction to interpret and apply the Code and to remedy any age discrimination it found to have occurred. Pursuant to s.2 of the CECBA and s.48(12)(j) of the Labour Relations Act, 1995, S.O. 1995, C.1, Sch. A, the GSB has the power to interpret and apply human rights legislation in resolving a grievance before it. The fact that the applicant disagrees with the GSB’s decision, and thinks that another conclusion should have been reached in respect of his grievance, is not a reason to permit the applicant to relitigate the issues legitimately decided elsewhere by an adjudicator with full jurisdiction to decide the human rights issues and to remedy any breach of the Code he found to have occurred.

21It is also clear that the proceeding before the GSB was one in which the applicant knew the case he had to meet and the chance to meet it. There is no allegation that the applicant was excluded from the process before the GSB. The applicant’s trade union retained counsel to advance the applicant’s age discrimination claim before the GSB, which counsel did, based on some if not all of the factual allegations the applicant makes before this Tribunal.

22Nor has the applicant pointed to any other factors that might lead the Tribunal to conclude that it would be fundamentally unfair to dismiss the human rights Application based on the earlier determination of the human rights issues by the GSB. The respondent argues, and I agree, that none of the Penner factors that might lead the Tribunal to permit relitigation of the human rights claim, notwithstanding the earlier determination by the GSB, exist in the case at hand.

23As for the allegation that the GSB Vice-chair who decided the applicant’s grievance was not impartial because an Employee Relations Advisor with the same last name was allegedly involved in refusing to produce documents related to the applicant’s grievance at some point in the grievance process, I am not persuaded that this is a basis for permitting the applicant to relitigate the issues decided by the GSB. First of all, the mere fact that the Vice-chair and an Employee Relations Advisor representing the respondent have the same last name is not a sufficient basis to conclude that the Vice-chair would not decide the applicant’s grievance fairly. In addition, I agree with the respondent that any allegation that the Vice-chair was not independent and could not decide the case impartially ought to have been raised before the Vice-chair at the time of the GSB hearing. It is not appropriately raised for the first time before this Tribunal and is not a basis for declining to dismiss the Application under s.45.1 of the Code.

24In the circumstances, I find that the applicant’s claim that his transfer to a service management role was discriminatory was appropriately dealt with in the proceeding before the GSB, and ought to be dismissed pursuant to s.45.1 of the Code. With the exception of the allegation regarding the denial of a mentorship opportunity, which is addressed below, the Application is dismissed under s.45.1 of the Code.

Whether denial of mentorship allegation has no reasonable prospect of success

25As noted above, in the Application that he filed with the Tribunal, the applicant alleges that the respondent discriminated against him by denying him a mentorship opportunity in March 2014. The applicant contends that the decision to deny him the mentorship opportunity was aligned with the respondent’s previous decision to transfer him to a service management role, and was also discriminatory against the applicant because of his age.

26There is no dispute that the applicant was notified on February 26, 2014 that he had been matched with a mentor in Architecture, Information Management and Project Management through the respondent’s mentorship program. However, the applicant was later told, on March 25, 2014, that the mentorship match was being “discontinued” following a discussion of program expectations and goals with the applicant. The discontinuation of the mentorship opportunity was also preceded by an email exchange between the applicant and the prospective mentor, in which the mentor indicated that his role was to provide mentorship in project management, rather than architecture; and the applicant responded that it was unfortunate that he had no direct project management activities assigned to him at that time.

27As I explained at the hearing and in my August 2015 Case Assessment Direction in this matter, the Tribunal does not have the general power to deal with allegations of unfairness. It can only deal with alleged discrimination on the grounds set out in the Code. In order to make out his discrimination claim, the applicant would need to be able to prove in evidence that the alleged disadvantageous treatment he complains of was linked in whole or in part to a Code ground, in this case, his age.

28At the December 1, 2015 hearing, I gave the applicant an opportunity to explain how he could prove that the cancellation of his mentorship opportunity was linked in whole or in part on his age. Referring to certain of the Ontario Human Rights Commission’s online materials, the applicant argued that denying mentorship opportunities to older employees and deviating from standard management practices are ways in which age-based discrimination may manifest.

29Having considered the submissions of the parties, I find that the applicant has no reasonable prospect of proving that the denial and/or cancellation of his mentorship opportunity was linked in whole or in part to his age.

30Although the applicant may honestly believe that the respondent’s decision to discontinue his mentorship match was linked to his age, it is well established that the applicant’s belief that the respondent discriminated against him is not evidence. It is not open to the Tribunal to make a finding of age-based discrimination based only on the applicant’s suspicions or beliefs. The Tribunal cannot find that the respondent discriminated against the applicant unless there is evidence that would allow the Tribunal itself to link the denial of the mentorship opportunity to the applicant’s age.

31In this case, there are no facts alleged by the applicant that, if proven to be true, could provide a basis for the Tribunal to find that the denial of a mentorship opportunity was connected to the applicant’s age, in whole or in part. The applicant’s allegation that the discontinuation of the mentorship match was linked to his age is really in the nature of a bald assertion, which is insufficient to ground a discrimination claim under the Code.

32The applicant argues that age-based discrimination may manifest in the denial of mentorship opportunities and/or deviation from standard management practices and that is true. However, there are no facts alleged in the case at hand that would allow the Tribunal to find that that is what occurred in the applicant’s case.

33In the circumstances, I find that the applicant’s claim that the denial of the mentorship opportunity was linked to his age has no reasonable prospect of success. It is denied accordingly.

34In sum, for the above reasons, the Application is dismissed.