HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Barlin Ahmed
Applicant
-and-
Extendicare West End Villa
Respondent
-and-
Canadian Union of Public Employees
Intervenor
DECISION
Adjudicator: Josée Bouchard
Indexed as: Ahmed v. Extendicare West End Villa
APPEARANCES
Barlin Ahmed, Applicant
Self-represented
Extendicare West End Villa, Respondent
John Bruce, Counsel
Canadian Union of Public Employees, Intervenor
Susan Lott, 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 race, colour, place of origin, ethnic origin and disability.
2On May 9, 2016, the Tribunal held a Preliminary Hearing to address the respondent’s Request for Order During Proceedings requesting that the Tribunal dismiss the Application pursuant to section 45.1 of the Code.
3The applicant did not participate but contacted the Tribunal on the morning of the hearing indicating that, because of language barriers, she did not understand that she had to phone into the hearing. She requested another Preliminary Hearing. Because of the applicant’s language barriers and in the interest of fairness, the Tribunal reconvened the hearing on June 9, 2016. The Tribunal received written submissions and heard oral submissions from the applicant, respondent and intervenor.
ANALYSIS AND DECISION
4The Application is dismissed.
Background
5Beginning in April 2009, the applicant was employed part-time as a dietary aide/dishwasher with the respondent. In late 2012, the applicant complained of a problem with her upper back. Between then and January 16, 2014, the applicant provided a number of medical notes and the employer attempted to accommodate her. On January 16, 2014, the respondent decided it could no longer provide suitable work to the applicant, with or without accommodations, and subsequently her employment was terminated.
6The applicant filed a grievance in May 2013 alleging that the employer failed to accommodate her following an injury at work. She filed a second grievance in January 2014 alleging that the employer terminated her employment as a result of her request.
7A three-member Arbitration Board (“Board”) held a two-day hearing. With the consent of the parties, the Board dealt both with the grievances and the human rights complaint. On November 23, 2015, the Board released the Arbitration Award (“Award”), dismissing the grievance related to the applicant’s discharge and awarding $20,000 to the applicant as human rights damages, without deduction.
8The applicant filed this Application on January 13, 2015, indicating in her Reply to the Response that she “filed her Application because the grievance process was taking too long and causing her financial difficulties”. In an Interim Decision, 2015 HRTO 524 at para. 7, the Tribunal notes “The main issues raised in the Application and the applicant’s grievance are the same.”
9The applicant is not satisfied with the Award. She is of the view that the remedies awarded to her are not proportional to the damage she suffered. The applicant maintains that she cannot find work because of her injury, she cannot carry her groceries, she feels uncomfortable and she is unhappy. The applicant also argues that $20,000 was insufficient to cover her large debt.
10The respondent and intervenor argue that,
a. section 45. 1 of the Code applies;
b. the Application deals with the same subject matter as the grievances;
c. a panel of three arbitrators held a two-day hearing in the matter;
d. all the parties, including the applicant, agreed that the Arbitration Board (“Board”) hearing would decide the human rights matters and it had jurisdiction to do so;
e. the parties presented the evidence related to the human rights matters;
f. the Board, in a written decision, addressed the human rights matters and awarded $20,000 as human rights damages, without any deduction, for the breach of duty to accommodate.
DECISION AND ANALYSIS
11Section 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.
12The application of section 45.1 of the Code has been considered by the Tribunal, notably in Campbell v. Toronto District School Board, 2008 HRTO 62, and Noble v. York University, 2009 HRTO 1201.
13It is clear from these decisions that the Tribunal places a high value on the finality of litigation, judicial economy and the recognition of the jurisdiction of other adjudicative bodies under the Code. In applying section 45.1 of the Code, however, the principal concern is not whether there has been related or parallel litigation, but whether the other proceeding has appropriately dealt with the substance of the human rights application. In this regard, the Tribunal will consider whether the applicant has already had a full and fair opportunity to have the human rights claim considered by an adjudicator who had the jurisdiction to interpret and apply the Code. See Noble, above, at para. 31.
14It is uncontested that the Application deals with the same subject matter as the grievances. Based on the consent of all the parties to the arbitration proceeding, the Board made a decision at the beginning of the hearing to address all human rights issues and it had jurisdiction to do so. The Award addresses those issues explicitly.
15It is clear that the central issue in both proceedings is the employer’s duty to accommodate and the termination of the applicant’s employment. The Board heard evidence related to the human rights issues, explicitly considered whether appropriate accommodations were in place and made a decision to that effect. Importantly, the Board awarded $20,000 in general damages, without deductions, specifically for human rights violations.
16I find that the Award dated November 23, 2015 appropriately dealt with the substance of the Application.
Order
17The Application is dismissed.
Dated at Toronto, this 14th day of June, 2016.
“Signed by”
Josée Bouchard
Vice-chair