Abdalla Mohamed Ali v. AvisCar Inc. and Ajmer Pabla, 2016 HRTO 853

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Abdalla Mohamed Ali

Applicant

-and-

AvisCar Inc. and Ajmer Pabla

Respondents

-and-

United Food and Commercial Workers Canada, Local 175

Intervenor

DECISION

Adjudicator: Jennifer Scott Date: June 24, 2016 Citation: 2016 HRTO 853 Indexed as: Ali v. AvisCar Inc.

APPEARANCES

Abdalla Ali, Applicant A. Chima, Counsel

AvisCar Inc. and Ajmer Pabla, Respondents Jordan Winch, Counsel

United Food and Commercial Workers Canada, Local 175, Intervenor Rebecca Woodrow, 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 is a former employee of the corporate respondent (the “Employer”). His employment was terminated on October 29, 2010 while he was on short-term disability. On November 8, 2010, a grievance was filed by the applicant’s union for unjust termination.

4The applicant filed his Application with the Tribunal on October 17, 2011. In the Application, he alleges the termination of his employment was a form of reprisal because the applicant “stood up for his rights”. The applicant refers to various incidents of harassment that allegedly took place during the period 2007 to 2009. It is not clear on the Application whether these allegations are Code-related.

5The arbitration hearing took place over the course of six days in August 2011 and January 2012.

6On March 2, 2012, the Tribunal deferred the Application pending completion of the grievance process, pursuant to Interim Decision 2012 HRTO 448.

7The arbitration decision was released on April 17, 2012. The arbitrator concluded the Employer had just cause to terminate the applicant’s employment because the applicant had failed to provide proper notification of his absence, had failed to keep his immediate supervisor informed on a periodic basic of when he would be returning to work, had failed to return to work on the completion of an authorized leave of absence, and was on an unauthorized leave of absence. The arbitrator held the applicant’s misconduct was very serious in that it was prolonged and calculated at totally avoiding the Employer.

8In the arbitration decision, the arbitrator referred to the applicant’s human rights Application before the Tribunal. The arbitrator stated the applicant and the union had advised that they were not raising any human rights issues at the arbitration hearing, including any issues regarding disability or accommodation under the Code. In particular, the union and the applicant stated they were not arguing the applicant was suffering from a disability under the Code that prevented him from returning the Employer’s phone calls in the manner requested by the Employer, or that he required any accommodation in connection with that.

9By Case Assessment Direction dated July 11, 2012, the Tribunal directed a preliminary hearing on whether the Application should be dismissed in whole or in part on the basis that another proceeding has appropriately dealt with the substance of the Application under section 45.1 of the Code. The preliminary hearing was scheduled for October 12, 2012. It was subsequently rescheduled for November 27, 2012.

10On October 19, 2012, the applicant filed an application for judicial review of the arbitration decision. By Interim Decision 2012 HRTO 2267, dated December 4, 2012, the Tribunal deferred the Application pending the completion of the judicial review application.

11On October 9, 2013, a single judge of the Divisional Court dismissed the application for judicial review. On December 17, 2014, a panel of the Divisional Court dismissed the applicant’s request for a review of that decision.

12On January 12, 2015, the applicant asked the Tribunal to re-activate the Application. On January 30, 2015, Interim Decision 2015 HRTO 143 re-activated the Application and directed a preliminary hearing on whether the Application should be dismissed under section 45.1 of the Code.

13The preliminary hearing was held by teleconference on March 7, 2016.

14The applicant submits the only issue considered by the arbitrator was whether he was terminated for cause. The applicant argues the arbitrator did not consider whether the Employer terminated him for discriminatory reasons or as an act of reprisal. The applicant believes that he was terminated because of the “ongoing burden of costs and accommodation” relating to his sick leave and as such, there was a discriminatory motive for the termination. He also believes that his termination was an act of reprisal because he “stood up for his rights”.

15The respondents and the intervenor submit the substance of the Application was appropriately dealt with by the arbitrator and should be dismissed under section 45.1 of the Code.

[Section 45.1](https://www.canlii.org/en/on/laws/stat/rso-1990-c-h19/latest/rso-1990-c-h19.html#sec45.1_smooth) of the [Code](https://www.canlii.org/en/on/laws/stat/rso-1990-c-h19/latest/rso-1990-c-h19.html)

16Section 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.

17It 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.

18Section 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. It applies even though the strict requirements of issue estoppel may not be met. See British Columbia (Workers' Compensation Board) v. Figliola, 2011 SCC 52 at paras. 24-25.

19In Figliola at para. 37, the Supreme Court of Canada stated 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.

20In Claybourn v. Toronto Police Services Board, 2013 HRTO 1298, the Tribunal applied the Supreme Court’s decision in Penner v. Niagara (Regional Police Services Board), 2013 SCC 19 and found that in deciding whether another proceeding appropriately dealt with the substance of a human rights claim pursuant to section 45.1, the Tribunal must consider not only whether the issue before the Tribunal was decided in another proceeding, but also whether it would be unfair in all of the circumstances to dismiss all or part of an application in light of the other proceeding, taking into account the nature of the other proceeding, the applicant’s stake in it, and the parties’ reasonable expectations about the impact the prior proceeding would have on their broader legal rights.

analysis

21The applicant argues the arbitrator did not deal with the substance of the Application because the sole issue decided by him was whether the applicant was terminated for just cause. The applicant submits the arbitrator did not determine whether the termination was tainted by discrimination. He submits further that he had no opportunity to present evidence in support of his discrimination claim because the union had carriage of the grievance.

22It is not in dispute that issues of discrimination were not raised before the labour arbitrator. The arbitration decision states that both the applicant and the union stated they were not raising human rights issues. In particular, the decision states they were not alleging the applicant was suffering from a disability under the Code that prevented him from returning the Employer’s phone calls in the manner requested by the Employer or that he required accommodation in connection with that.

23It does not appear from the arbitration decision that the applicant was precluded from raising human rights issues relating to his termination. While there may have been good reason for him not raising human rights issues regarding his ability to communicate with the Employer (there may have been none), there is no information before me that the applicant was precluded from arguing the termination was discriminatory and/or in reprisal for his assertion of his human rights. The issue before the arbitrator was whether the employer had just cause to terminate the applicant. Allegations that the Employer had a discriminatory motive to terminate the applicant’s employment would have been highly relevant to this question. It is well established that the arbitrator would have had the authority to deal with these issues had they been raised. See Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42.

24The applicant is now asking the Tribunal to hear his allegations of discrimination and reprisal. In effect, the applicant is asking the Tribunal to determine afresh the reason for the termination on the basis of arguments that were not put to the arbitrator. To succeed in these claims, the Tribunal would have to overturn the arbitrator’s finding of just cause and find there were discriminatory reasons for the termination. This would lead to the kind of re-litigation of issues that the Supreme Court determined was improper in Figliola.

25Parties should not be permitted to restrict Code arguments in labour arbitration so that they can be pursued later before the Tribunal. This is known as “splitting one’s case” and is not permitted by the Tribunal. In this case, to allow the applicant to assert new allegations relating to the termination of employment in the face of a determination of that very issue would be an abuse of the Tribunal’s process and contrary to the intent of section 45.1 of the Code. As the Tribunal stated in Paterno v. Salvation Army, Centre of Hope, 2011 HRTO 2298 at para. 28:

It is not analytically correct or appropriate to ask an arbitrator to ignore possible Code breaches in finding whether there was cause, or to allow a grievor to save for later his or her Code objections to the cause for discipline. This would be contrary to the policy intentions of s. 45.1 in preventing duplicative litigation. A grievor who pursues a grievance that discipline is without cause should raise all the arguments for that belief in the collective agreement proceeding he or she has commenced.

See also: Bhol v. Coca-Cola Refreshments Canada Co., 2014 HRTO 96 and Howell v. National Steel Car Ltd., 2012 HRTO 1589.

26The substance of this Application is the termination of the applicant’s employment. This encompasses issues including the legitimacy of the termination, the Employer’s motives for the termination and whether the termination was contrary to the Code. I find that the termination of the applicant’s employment has been appropriately dealt with in the arbitration decision. Fairness dictates that there is finality to this issue and that the applicant not be permitted to re-litigate it.

27Finally, 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. 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 cannot require the Employer to re-litigate the termination of his employment as it would be an abuse of process and contrary to the purpose of section 45.1 of the Code to allow him to do so.

order

28The Application is dismissed.