Balchand v. Toronto (City), 2016 HRTO 736

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Chatebadhur Balchand

Applicant

-and-

City of Toronto, Myles Currie, Hector Moreno, Trevor Tenn, Ted MacMillan and John Murphy

Respondents

DECISION

Adjudicator: Leslie Reaume

Date: May 30, 2016

Citation: 2016 HRTO 736

Indexed as: Balchand v. Toronto (City)

APPEARANCES

Chatebalhur Balchand, Applicant

Self-Represented

City of Toronto, Myles Currie, Hector Moreno, Trevor Tenn, Ted McMillan, and John Murphy, Respondents

Omo Akintan, Counsel

Introduction

1This is an Application under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination and reprisal on the basis of disability with respect to employment.

2This Application was deferred by way of an Interim Decision, 2014 HRTO 368, pending the resolution of a grievance and arbitration proceeding. In that Interim Decision, the Tribunal also dismissed the allegations against the applicant’s union and a union representative, leaving the allegations against the organizational respondent and five individual respondents. The arbitration concluded with an Award issued by Arbitrator Stout on September 7, 2015.

3The Tribunal granted the request to reactivate the Application on the consent of the parties on November 16, 2015. The parties were also advised that the Application would be scheduled for a preliminary hearing pursuant to section 45.1 of the Code, during which oral submissions would be heard on whether the substance of the Application was appropriately dealt with at arbitration. The parties filed written material and oral submissions were made on March 8, 2016.

4The respondents request that the Application be dismissed while the applicant opposes this request. The applicant’s union, Toronto Civic Employees Union, Local 416 (“TCEU”) indicated that it would not be participating in the preliminary hearing.

The Application

5The applicant alleges discrimination and reprisal on the basis of disability. The applicant was injured at work on August 22, 2007. He has a permanent disability which requires him to take time off from work to rest. The applicant alleges that he experienced discrimination, harassment and reprisal by the respondents over a long period of time during which he was the subject of progressive discipline and ultimately terminated. The applicant alleges that the respondent did not properly accommodate him and is seeking reinstatement and the wages he lost since the termination.

The Arbitration Decision

6The arbitrator dealt with nine grievances involving suspensions, use of vacation leave instead of sick leave, a demotion, denial of sick leave and termination and issued an Award on September 7, 2015 following 12 days of evidence and arguments. The arbitrator noted that the grievances before him concern discipline imposed by the respondent on the applicant for alleged misconduct. He further stated that the applicant, for the most part, disputes the respondents’ allegations of misconduct.

7The arbitrator also noted that the applicant alleged that the respondent discriminated and harassed him, which the respondents denied. The arbitrator indicated that while no specific grievance alleging harassment and discrimination had been filed, some of the grievances request a “harassment free workplace.”

8The arbitrator heard evidence from a number of witnesses over a number of days and determined the grievances on the basis of findings of credibility.

9The arbitrator conducted a comprehensive review of all of the incidents leading up to the applicant’s termination, including those incidents set out in the Application to this Tribunal. He explicitly addressed the applicant’s allegations of discrimination and harassment and provided extensive reasons for his conclusion that the respondent had not engaged in discrimination or harassment. With respect to the allegation that Mr. MacMillan engaged in reprisal against the applicant because the applicant filed a complaint against him under the respondent’s human rights policy in February, 2009, the arbitrator found that the reprisal allegations had no merit.

Section 45.1

10The respondents submit that the substance of this Application was appropriately dealt with by the arbitrator. 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.

11The Tribunal has held that, in determining whether an application ought to be dismissed pursuant to section 45.1 of the Code, it ought to consider: (1) whether there was another “proceeding”; and (2) if so, whether it “appropriately dealt with” the substance of the application.

12There is no question that the decision of the arbitrator in this case arises from a proceeding. The Tribunal has long accepted that labour arbitrations constitute a proceeding pursuant to section 45.1 of the Code.

13The allegations set out in the Application were dealt with by the arbitrator. Fundamentally, the applicant believes that the decision of the arbitrator is incomplete and/or incorrect, and that in all of the circumstances, it would be unfair to bar his human rights Application based on the outcome of the arbitration. He is dissatisfied with the conduct of the union and respondent at the arbitration and the arbitrator’s findings and is seeking to reopen all of the issues which were the subject of 12 days of evidence and argument.

14I agree with the Tribunal decision in K.M. v. Kodama, 2014 HRTO 526 (upheld: Ontario (Community Safety and Correctional Services) v. De Lottinville, 2015 ONSC 3085) on the relationship between issue estoppel, fairness and finality. In that decision, the Tribunal found that the fairness of using the results of another proceeding to bar a human rights Application is a principle that ought to be considered in applying section 45.1 of the Code. The Tribunal also noted that an application should not be dismissed as having been “appropriately dealt with” in another proceeding without taking into account the nature of the other proceeding, the applicant’s stake in it and the parties’ reasonable expectations about the impact of the earlier proceeding on their broader legal rights.

15In this case, the arbitrator explicitly took jurisdiction of the applicant’s allegations of discrimination, harassment and reprisal. He provided the parties with extensive, detailed reasons which included findings of fact based on careful assessments of credibility. The arbitrator cited and applied the prevailing jurisprudence on all of the human rights issues before him. To permit the applicant to proceed before this Tribunal would be tantamount to permitting him to appeal the arbitration decision. There is no basis for permitting the applicant to re-litigate these issues before this Tribunal.

16For the reasons set out above, I find that the substance of the Application has been appropriately dealt with in another proceeding.

17Accordingly, the Application is dismissed.