Archibald v. Cancoil Thermal Corporation, 2016 HRTO 867

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Henry (Harry) Archibald Applicant

-and-

Cancoil Thermal Corporation and Chander Datta Respondents

-and-

United Food and Commercial Workers Canada, Local 175 Intervenor

DECISION

Adjudicator: Geneviève Debané Date: June 29, 2016 Citation: 2016 HRTO 867 Indexed as: Archibald v. Cancoil Thermal Corporation

APPEARANCES

Henry Archibald, Applicant Self-represented

Cancoil Thermal Corporation and Chander Datta, Respondent John Cowan, Representative

United Food and Commercial Workers Canada, Local 175, Intervenor Natalie Wiley, Counsel

Introduction

1This Application alleges discrimination with respect to employment because of sex and sexual orientation contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2On November 19, 2015, the Tribunal directed that a preliminary hearing would be held to determine whether all or part of the Application should be dismissed on the basis of delay and pursuant to s. 45.1 of the Code.

Background

3In the Application the applicant alleges that there had been derogatory comments and graffiti written about him in the men’s washroom for a period of four months. On March 3, 2011, there was an altercation at work involving another employee who the applicant believed was responsible for writing the derogatory comments. On March 11, 2011 the respondent corporation terminated the applicant’s employment.

4A grievance contesting the applicant’s termination from employment was filed and referred to Arbitrator Kristen Eliot. On July 24, 2013 the Arbitrator issued her Decision which upheld the applicant’s termination from employment and dismissed the grievance.

5In the interim, on March 2, 2012, the applicant filed this Application, alleging that his termination from employment was discriminatory and that the respondents failed to address his complaints of harassment.

The Law

6The Tribunal’s power to hear and determine human rights applications is based on the Code. Section 34 states:

(1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series.

(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

7In the case of Garrie v. Janus Joan Inc., 2012 HRTO 1955, the Tribunal canvassed the law and the approach with respect to what constitutes a series of incidents and at para. 30 held that the Tribunal should consider the following factors:

A review of the Tribunal’s jurisprudence under section 34(1) suggests that the following factors will generally be relevant to the Tribunal’s determination of whether or not allegations of discrimination are timely because they relate to a “series of incidents”:

a. What is the last alleged incident of discrimination to which the Application relates?

b. Do the allegations relate to a series of separate and independent incidents of discrimination or do they relate to the continuing effect of a single incident of discrimination?

c. What is the nature or character of the alleged discrimination and is it part of a pattern or series of incidents of a similar nature or character?

d. What is the temporal gap between alleged incidents of discrimination?

8Section 45.1 of the Code provides that the Tribunal may dismiss an application in whole or in part where in its opinion the substance of the application has been appropriately dealt with in another proceeding.

9The relevant legal principles with respect to section 45.1 in this context are well established in the Tribunal’s jurisprudence and include aspects of the common law doctrines of res judicata, issue estoppel, collateral attack and abuse of process and was intended to prevent re-litigation of issues that have been adjudicated in another legal proceeding. The approach to the exercise of discretion under a similarly worded section arising from the Human Rights Code in British Columbia was clarified and confirmed by the Supreme Court of Canada in Figliola v. British Columbia (Workers Compensation Board), 2011 SCC 52. See also Gomez v. Sobeys Milton Retail Support Centre, 2011 HRTO 2297.

10In Paterno v. Salvation Army, 2011 HRTO 2298, the Tribunal explained the purposes of section 45.1, as follows:

This Tribunal has emphasized throughout its jurisprudence on s.45.1 that in applying the section, the analysis should not be technical, but should focus on the goals of preventing re-litigation of the substance of issues decided elsewhere. Where the result of the other proceeding disposes, in essence, of the issues before this Tribunal, the Application must be dismissed. For example, in Campbell v. Toronto District School Board, 2008 HRTO 62, the Tribunal found that the analysis applied by the special Education Tribunal in an appeal under the Education Act, R.S.O. 1990, c. E.2, as amended, appropriately dealt with issues under the Code, because the essence of the analysis was the same even if the Code was not directly applied. In Qui v. Neilson, 2009 HRTO 2187, the Tribunal found that where the factual findings made in another proceeding preclude a finding of discrimination, an Application must be dismissed even if the other proceeding did not specifically apply the Code. In Dunn v. Sault Ste. Marie (City), 2008 HRTO 149, the Tribunal found that where a party settled a previous proceeding that included the essence of the human rights matter, the Application should be dismissed under s. 45.1.

Analysis

11I have reviewed the Application. In my view there are two distinct allegations of discrimination. The first relates to the applicant’s termination from employment on March 11, 2011. The second allegation pertains to what the applicant refers to as harassment on the basis of sex and sexual orientation. In this regard, the applicant states that there were a number of derogatory comments written about him in the men’s washroom. Though the applicant states in his Application that he was harassed, those are the only specific incidents of harassment that he has articulated.

The applicant’s termination from employment

12With respect to the allegation that his employment was terminated for discriminatory reasons, it is clear that this allegation is timely. The date of the applicant’s termination from employment is March 11, 2011, and this Application was filed on March 2, 2012, well within one year of this incident. As such, the issue is whether the substance of the Application was appropriately dealt with by the grievance and arbitration proceeding.

13In my view, the Arbitrator appropriately dealt with the substance of the Application as it relates to the applicant’s termination from employment. The Arbitrator considered the reasons for the respondent’s decision to end the employment relationship. The Arbitrator found that the applicant had threatened the other employee at least twice, the second time being after a cooling off period of 72 hours. The Arbitrator also took into consideration that the applicant was a short service employee, had an “extensive disciplinary record” and that he had a “persistent resistance to workplace rules”.

14Though the Code is not mentioned expressly by the Arbitrator, all of the explanations provided by the applicant to justify his conduct were considered by the Arbitrator, including the graffiti and the allegation of provocation. Having considered the matter, I find the Arbitrator appropriately dealt with the substance of the Application as it relates to the Applications termination from employment and the applicant should not be permitted to re-litigate this issue at the Tribunal. In my view, in light of the findings of fact made by the arbitrator fairness requires that the finality of the arbitrator’s decision be respected by this Tribunal.

Harassment

15With respect to the allegations of harassment and whether they must be dismissed for delay, I must determine whether there was a series of incidents and when the last incident occurred in that series. During the preliminary hearing the applicant agreed that the respondents eventually had the washrooms painted a dark colour so that employees could no longer write on the washroom wall. I asked the applicant the date of the last time that he saw something written in the washroom. At first the applicant indicated that it was at least two weeks before he was terminated. He then corrected himself and said that it was at least two weeks prior to his altercation with the other employee on March 3, 2011. The applicant then stated that he did not remember the date specifically. In my view, neither the Application nor the applicant’s submissions during the preliminary hearing identified any allegation of harassment to have occurred within one year of the filing of the Application, other than the applicant’s altercation with the other employee which occurred on March 3, 2011 and his termination from employment. As such, I must consider whether the applicant’s allegation that the last incident in the series is the altercation which occurred on March 3, 2011.

16The Tribunal has a mandate to adjudicate applications in a fair, just and expeditious manner. The Tribunal has referred to the one-year time limit as a jurisdictional bar. Often, after an applicant’s employment is terminated an Application will contain years of allegations against a former employer. The task of the Tribunal however is determine whether these other allegations form part of a series of incidents that are somehow linked to the termination from employment.

17In this case, the applicant argues that his termination from employment and the harassment allegations are linked because the applicant believes that the employee he had an altercation with was responsible for the graffiti in the washroom. He also believes that it is because of this graffiti that he “lost it” at work and threatened his co-worker. He says that this is in part because of the respondents’ failure to address the issue. However, in my view, the harassment allegations and the termination of the applicant’s employment are two distinct allegations.

18First, I note the Arbitrator found that the applicant had presented no evidence to support his belief that the other employee was responsible for the graffiti in the washroom. Secondly, the Arbitrator also found that there was no evidence that the applicant saw any graffiti in the washroom on March 3, 2011, the date of the altercation with the other employee. Third, the Arbitrator does not find that there was any provocation from the other employee (indeed the applicant did not hear the comment that was allegedly made to him by the other employee) and the Arbitrator found that it was the applicant who threatened the other employee.

19Given these findings of fact made by the Arbitrator, the allegations with respect to the harassment and the termination from employment allegations do not constitute a series of incidents as they are distinct in nature. The harassment allegations relate to an employer’s obligation to provide a workplace free from harassment and discrimination. The termination relates to discipline that was imposed on the employee and upheld by an Arbitrator. Therefore, in light of the findings of fact made by the Arbitrator with respect to the events of March 3 and his termination from employment, I find that the applicant has no reasonable prospect of establishing that there is an incident of harassment and/or discrimination that in fact occurred within one year of March 2, 2012.

20As such the Application with respect to this issue is not timely. The Tribunal has the jurisdiction to accept an Application filed more than one year after the last incident of alleged discrimination if it is satisfied that the delay was incurred in good faith. The Tribunal has extensive case law which has addressed the issue of whether the delay in filing an application was incurred in good faith. The applicant must provide a reasonable explanation for the delay. Corrigan v. Peterborough Victoria Northumberland and Clarington Catholic District School Board, 2008 HRTO 424.

21In my view, I am not satisfied that there is good faith. The applicant did not provide a reasonable explanation for the delay in filing the Application. I note that the applicant was diligent in filing his grievance related to his termination from employment. In these circumstances I am not satisfied that the delay was incurred in good faith.

Order

22The Application is dismissed.

Dated at Toronto, this 29th day of June, 2016.

“Signed by”

Geneviève Debané Vice-chair