Harold Parris v. City of Toronto, 2016 HRTO 794

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Harold Parris

Applicant

-and-

City of Toronto

Respondent

-and-

Toronto Civic Employees Union, Local 416

Intervenor

DECISION

Adjudicator: Jennifer Scott

Date: June 10, 2016

Citation: 2016 HRTO 794

Indexed as: Parris v. Toronto (City)

APPEARANCES

Harold Parris, Applicant

Self-represented

City of Toronto, Respondent

Kerri Kitchuri, Counsel

Introduction

1This decision deals with the issue of whether the Application should be dismissed under s. 45.1 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) on the basis that another proceeding has appropriately dealt with the substance of the Application.

2For the reasons that follow, I find that the Application should be dismissed under s. 45.1 of the Code.

background

3The applicant was an employee of the respondent, the City of Toronto (the “City”). On February 27, 2013, he attended a work selection meeting. The position that was available was the Light Equipment Operator position (“LEO1 position”). The applicant was offered this position, conditional on the completion of a Functional Abilities Assessment (“FAE”).

4The LEO1 position is under the City’s litter operations. For the purposes of this Decision, it is sufficient to say that the duties of this position include picking up litter from the public areas of the City manually, using a bag and broom, or mechanically, using a device called a mad vac machine. The bag and broom duties involve extensive walking.

5The FAE was completed on March 26 and April 2, 2013. The assessor concluded the applicant had no walking restrictions. The applicant disputes this conclusion.

6The applicant commenced work on April 22, 2013. He had no difficulty fulfilling his job duties using the mad vac machine.

7The applicant was assigned bag and broom duties on May 7, 8, 9 and 10, 2013 because no mad vac machines were available. He told the City that he was unable to perform the bag and broom duties because he was unable to walk the distances required. The applicant was sent home by his supervisor.

8The applicant raised concerns with his supervisor and the WSIB about his ability to do the bag and broom job. His supervisor advised him to put his concerns in writing and to obtain medical documentation to support further absences from work.

9On May 29, 2013, the applicant met with his supervisor. The applicant received a suspension for refusing to work. There appears to be a dispute between the parties on whether this suspension was a one-day or indefinite suspension. The applicant reacted to the suspension by allegedly engaging in abusive and threatening conduct. As a result, he received an indefinite suspension pending an investigation into his conduct. On June 7, 2013, the applicant was terminated.

10The applicant’s union filed three grievances: one for a failure to accommodate, one for the indefinite suspension, and one for the termination. The accommodation grievance was stayed pending the outcome of the suspension/termination grievances.

11The indefinite suspension and termination grievances proceeded to labour arbitration. The arbitration hearing took place over the course of four hearing days. The applicant’s union argued the suspension and the termination were discriminatory.

12The arbitrator released her decision on March 24, 2015. In the decision, the arbitrator reviewed the history surrounding the applicant’s physical ability to do the bag and broom work. She summarized the results of the FAE, the days the applicant was assigned the bag and broom work, the applicant’s refusal or inability to do this work, the communications between the applicant and the City about the bag and broom work, and the City’s request for medical information from the applicant to support his absences from work. After doing so, she made the following finding:

It was in this context that the City had no basis to accept that the Grievor’s stated inability to perform the assigned work was medically supported, and it was not going to pay him for days on which he had not worked. Parris was again advised that if he refused to perform assigned work in the future he would be subject to disciplinary action up to and including discharge.

13The arbitrator held the applicant’s indefinite suspension was due to the gravity of his threat to management and his abusive conduct on May 29, and that it had nothing to do with his disability or WSIB claim. She concluded the City had not acted in a discriminatory manner when it suspended the applicant on May 29, 2013.

14The arbitrator found further that the applicant was terminated from his employment because of his abusive, threatening and defiant actions, and because of his insubordination on May 29, 2013. She found the applicant’s knee disability and WSIB claim were not part of the proximate or immediate cause for his dismissal. The arbitrator found the City had not acted in a discriminatory manner towards the applicant when it concluded it had sufficient reason to terminate his employment.

15The applicant argues the arbitrator dealt with the suspension and termination of his employment, but did not deal with the alleged failure on the part of the City to accommodate his disability, the subject of his Application before the Tribunal.

16The City asserts the Application was appropriately dealt with by the arbitrator and should be dismissed under section 45.1 of the Code.

Section 45.1 of the Code

17Section 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.

18It is well established that a labour arbitration is a “proceeding” within the meaning of the Code. See Gavin v. London Health Sciences Centre, 2016 HRTO 725. The only issue in this case is whether the substance of the Application was appropriately dealt with by the arbitrator.

19Section 45.1 of the Code is the statutory reflection of the collective principles underlying the common law doctrines of issue estoppel, collateral attack, and abuse of process. These doctrines are applied to avoid a multiplicity of proceedings on the same issue, and to protect the integrity of the administration of justice, all in the name of fairness. See British Columbia (Workers' Compensation Board) v. Figliola, 2011 SCC 52 at paras. 24-25.

20In Figliola, the Supreme Court of Canada found that a tribunal should ask itself the following questions in assessing whether the substance of a complaint has been dealt with in another proceeding:

Relying on these underlying principles leads to the Tribunal asking itself whether there was concurrent jurisdiction to decide human rights issues; whether the previously decided legal issue was essentially the same as what is being complained of to the Tribunal; and 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, regardless of how closely the previous process procedurally mirrored the one the Tribunal prefers or uses itself. All of these questions go to determining whether the substance of a complaint has been “appropriately dealt with”. At the end of the day, it is really a question of whether it makes sense to expend public and private resources on the relitigation of what is essentially the same dispute. (at para. 37)

21After hearing considerable evidence on the grievances, the arbitrator concluded that the City did not discriminate against the applicant because of his knee disability when it suspended him and subsequently terminated his employment. The arbitrator addressed the applicant’s claim that he could not do the bag and broom work at paragraphs 44 to 51 of her decision. She did so because it was a key fact in the events leading to the applicant’s indefinite suspension and termination. The applicant received a suspension for allegedly refusing the bag and broom work. The applicant’s reaction to the suspension resulted in an indefinite suspension and termination of his employment.

22At paragraph 51 of the decision, the arbitrator concluded that the City had no basis to accept that the applicant’s professed inability to perform the bag and broom work was medically supported. The arbitrator stated the applicant was advised that if he refused to work in the future, he would be subject to disciplinary action, including termination. In making this finding, the arbitrator implicitly rejected the applicant’s claim that the City discriminated against him when it required him to do the bag and broom work, the alleged failure to accommodate.

23The applicant is asking the Tribunal to ignore this finding and determine afresh whether the City failed to accommodate his disability when it required him to do the bag and broom work. In order to succeed in this claim, the Tribunal would have to make findings that contradict those made by the arbitrator. This would lead to the kind of re-litigation of issues that the Supreme Court determined was improper in Figliola.

24Even if the arbitrator has not decided the applicant’s failure to accommodate allegation, it would constitute an abuse of the Tribunal’s process to hear this allegation. As stated above, the applicant’s claim that he could not do the bag and broom work was an integral part of the events leading to his suspension/termination. At the very least, the applicant’s belief that he was being assigned work that he was physically incapable of performing provided a context or explanation for his conduct that resulted in the suspension and ultimate termination of his employment. It was relevant to the suspension/termination grievances for this reason.

25Parties should not be permitted to restrict Code arguments in labour arbitration so that they can be pursued later before the Tribunal. In this case, to allow the applicant to parse out a discrete allegation that is integral to the other issues raised in the arbitration would be an abuse of the Tribunal’s process and contrary to the intent of section 45.1 of the Code. See O.L. v. Sun Media Corporation, 2015 HRTO 554.

26Moreover, the arbitrator found the City had just cause to terminate the applicant’s employment. This Tribunal has found that a finding of just cause by an arbitrator incorporates a finding that the dismissal was consistent with the Code because just cause presumes that the discipline was consistent with the employer’s statutory obligations, including those under the Code. See Paterno v. Salvation Army, 2011 HRTO 2298.

27This principle has some application to this case. The arbitrator’s finding that the City had just cause to terminate the applicant incorporates a finding that the applicant was not subject to discrimination in the events leading up to the termination. The arbitrator could not ignore the applicant’s allegation that the City had failed to accommodate his disability because it provided context for the applicant’s reaction for which he was disciplined and ultimately terminated. This is why a significant part of the arbitrator’s decision is devoted to this issue. The applicant’s claim that he was assigned work that he could not physically perform was considered by the arbitrator when she made her decision on the suspension/termination grievances. In particular, it was incorporated in her decision that the applicant’s disability had nothing to do with his suspension. The fact that there was a separate accommodation grievance does not change this.

28Finally, the applicant chose to pursue his grievance and arbitration with the assistance of union counsel. He could have foregone the grievance process and proceeded with his human rights Application before the Tribunal on all of the issues – accommodation, suspension and termination. Having chosen the grievance process, he must accept the consequences of that choice. As the Tribunal stated in Paterno at para. 33, “An applicant has a choice about where to proceed, but does not have the option to require an employer to litigate the same issues twice”. In this case, the applicant is asking the City to re-litigate an issue that was integral to the arbitrator’s finding on the suspension/termination grievances.

29For these reasons, I find the Application has been appropriately dealt with in the arbitration decision.

order

30The Application is dismissed.