Kevin Gavin v. London Health Sciences Centre, 2016 HRTO 725

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kevin Gavin

Applicant

-and-

London Health Sciences Centre

Respondent

DECISION

Adjudicator: Keith Brennenstuhl

Date: May 27, 2016

Citation: 2016 HRTO 725

Indexed as: Gavin v. London Health Sciences Centre

APPEARANCES

Kevin Gavin, Applicant

Self-represented

London Health Sciences Centre, Respondent

Brian O’Byrne, Counsel

1This Application alleges discrimination with respect to employment, because of sex contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). Specifically, the applicant alleges that he was terminated from his employment with the respondent without cause and that his sex was a factor in the decision to terminate him.

2The applicant filed a grievance through his Union, the Ontario Nurses’ Association, alleging that his termination of employment with the respondent was without just cause and that it also violated the Code. The grievance was referred to arbitration and the hearing Arbitrator dismissed the grievance and upheld the termination.

3In an Case Assessment Direction dated January 19, 2016, the Tribunal directed that a conference call be scheduled to hear submissions on three issues: whether all or part of the Application should be dismissed under s. 45.1 of the Code, whether the Application stands no reasonable prospect of success, and/or whether the Application is untimely. The call was held on May 19, 2016.

4In view of my decision on the issue of s. 45.1, I do not need to consider the issue of whether the Application stands no reasonable prospect of success or whether it is untimely.

5Section 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.

6It is well established that the grievance arbitration process is a “proceeding” for the purposes of s. 45.1 of the Code. See for example Taylor v. Humber River Regional Hospital, 2013 HRTO 172. The issue, therefore, is whether the hearing “appropriately dealt with” the subject matter of the Application.

7In Campbell v. Toronto District School Board, 2008 HRTO 62, the Tribunal discussed some principles in interpreting s. 45.1, of which, have been applied in many cases since. Among them are: that the purpose of s. 45.1 is to avoid the duplication of proceedings and the re-litigation of issues that have been dealt with elsewhere; that the Tribunal should not be overly technical in determining whether another proceeding has appropriately dealt with the substance of the application; and, that the Tribunal does not act as an appellate court from the decisions of other tribunals and need not be satisfied that it would have reached the same conclusion as that reached in the other forum.

8The Grievance in this case reads:

I am grieving that the Employer has violated the Collective Agreement including but not limited to articles 1, 3, 4, 8, 11, 12, 14, 17, 20, and 22 in addition to any governmental legislation or statute including but not limited to the Ontario Employments Standards Act, the Ontario Human Rights Code and the Ontario Labour Relations Act by terminating my employment without just cause.

9The grievance hearing lasted 6 days. There were 8 witnesses as well as two written statements, including the applicant who gave his evidence and was subject to cross-examination. The parties had the full opportunity to make their case before the Arbitrator including Code related grounds as pleaded and the Arbitrator made his decision on the basis of the evidence and the submissions before him. The Arbitrator had the jurisdiction to interpret and apply the Code and concluded that the applicant was responsible for the conduct relied on by the employer to support termination and the applicant’s gender had nothing to do with why he was terminated. The Arbitrator upheld the termination and the grievance was dismissed.

10The applicant’s complaint that he did not support the manner in which the Union’s counsel advanced the grievance does not permit the applicant to now re-litigate the issues that were appropriately decided by the Arbitrator.

11For these reasons the Application is dismissed pursuant to s. 45.1 of the Code.