HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Nenette Ntema-Mbudi Applicant
-and-
City of Ottawa Respondent
-and-
Ottawa-Carleton Public Employees Union, Local 503 Intervenor
DECISION
Adjudicator: Josée Bouchard Date: October 23, 2017 Citation: 2017 HRTO 1403 Indexed as: Ntema-Mbudi v. City of Ottawa
APPEARANCES
Nenette Ntema-Mbudi, Applicant Self-represented
City of Ottawa, Respondent Margaret-Marie Steele, Counsel
Ottawa-Carleton Public Employees Union, Local 503, Intervenor Samantha Lamb, 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, ethnic origin, family status and marital status.
2On September 25, 2017, the Tribunal held a Preliminary Hearing to address the respondent’s request, made in its Response, that the Tribunal dismiss the Application pursuant to section 45.1 of the Code because another proceeding has, in whole or in part, appropriately dealt with the substance of the Application. More specifically, the respondent refers to the following arbitration decision: City of Ottawa and Canadian Union of Public Employees Local 503 (“the Union”) and Nenette Ntema-Mbudi, Arbitrator Michelle Flaherty, February 16, 2017 (“the Arbitration Decision”).
ANALYSIS AND DECISION
3The Application is dismissed.
Background
4On December 16, 2009, the applicant began working as a Registered Practical Nurse for the City of Ottawa. In this role she was responsible for care and supervision of residents at the Centre d’acceuil Champlain, a long-term care home. The applicant was terminated on November 5, 2015 for misconduct.
5The Canadian Union of Public Employees, Local 503 (“CUPE”) filed a grievance on November 18, 2015, regarding the termination of the applicant’s employment. The grievance alleged that the applicant’s termination was without cause and contrary to the collective agreement. The grievance further alleged that the respondent had discriminated against the applicant in the conduct of its investigation.
6On September 22, 2016, the applicant filed the present Application. The Application alleges that the respondent discriminated against the applicant based on her race, colour, ethnic origin, family status and marital status by adversely treating her during her employment and in the context of her termination.
7The grievance was referred to arbitration. The parties met before Arbitrator Michelle Flaherty on May 24, November 3 and November 8, 2016. In addition, Arbitrator Flaherty and counsel for the parties convened a teleconference call on February 10, 2017. On February 16, 2017, Arbitrator Flaherty issued the Arbitration Decision.
Section 45.1 of the Code
8The applicant maintains that she filed the Application after a grievance had been filed because she realised she could. She informed the Union immediately and provided it with a copy of the Application. She confirms that the Union represented her throughout the grievance process and that both the grievance and Application are based on the same facts. The applicant argues that the Arbitration Decision only addresses the procedure related to her termination of employment but does not address the substance of the discrimination allegations.
9The respondent argues that the arbitration process appropriately dealt with the substance of the Application, given that Arbitrator Flaherty considered the Application in making her findings and orders. Arbitrator Flaherty concluded that the termination was warranted and she provided reasons for this decision. She further considered all of the matters raised in the Application to the Human Rights Tribunal and awarded the applicant $7,500 as general damages without deduction for her human rights allegations. Consequently, the allegations contained in the Application were considered and addressed by Arbitrator Flaherty.
10Section 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.
11In interpreting this section, the Tribunal is guided by two decisions of the Supreme Court of Canada: British Columbia (Workers’ Compensation Board) v. Figliola, 2011 SCC 52 (“Figliola”) and Penner v. Niagara (Regional Police Services Board), 2013 SCC 19 (“Penner”). This Tribunal has considered how these decisions impact the Tribunal’s interpretation of section 45.1 in a number of cases, notably, Claybourn v. Toronto Police Services Board, 2013 HRTO 1298 (“Claybourn”).
12In Post v. Stevens Resources Group, (“Post”), the Tribunal reviewed these decisions and concluded:
According to Figliola and Penner, once it has been confirmed that concurrent jurisdiction exists to decide the human rights issues, there are three primary questions to consider in order to determine if another proceeding has appropriately dealt with the substance of the Application. These are:
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;
whether the previously decided legal issue was essentially the same as what is being complained of to the Tribunal; and
whether it would be unfair to apply the doctrine of issue estoppel in the particular circumstances of the case?
13There is no question that the Arbitration Decision arose from a proceeding. The Tribunal has long accepted that labour arbitration constitutes a proceeding pursuant to section 45.1 of the Code. See Chivers v. National Steel Car Ltd., 2015 HRTO 843 at para. 30 and Balchand v. Toronto (City), 2016 HRTO 736 at para. 12.
14I turn now to the three-pronged criterion outlined above.
15I find that the applicant clearly knew the case she had to meet and had full opportunity to present evidence and make submissions concerning those issues. The applicant was represented by her union. Arbitrator Flaherty specifically mentions in the Arbitration Decision that she reviewed the grievance, the applicant’s Application before the Human Rights Tribunal and the facts as agreed by the parties in an Agreed Statement of Facts. She also heard the submissions of counsel for the parties, including their submissions concerning alleged violations of the Code. I find that the legal issues decided in the Arbitration Decision were essentially the same as what is complained about before the Tribunal. See Post, above.
16Not only did the arbitrator have concurrent jurisdiction with this Tribunal to apply the Code, she had the power to award the remedies sought by the applicant. The Arbitration Decision addresses the substance of the Application, namely whether the employer discriminated against the applicant during her employment and in terminating her from her employment. Arbitrator Flaherty concludes that the discharge was warranted in the circumstances and denies the request for reinstatement but awards $7,500 as general damages, without deduction, specifically for the applicant’s human rights allegations. Arbitrator Flaherty states “In making this Award, I have considered all outstanding disputes arising from the grievance and the Application referred to above, including issues related to the termination of the Grievor’s employment, and her claims under the Ontario Human Rights Code, as amended”. See para. 4 of the Arbitration Decision.
17In addition to the above-mentioned considerations, Penner, above, requires the Tribunal to consider whether it would be unfair for the proceeding before Arbitrator Flaherty to preclude the applicant from bringing the Application to this Tribunal.
18I find that none of the indicators of unfairness identified in Penner applies here.
19When an adjudicative body decides an issue within its jurisdiction, it and the parties who participated in the process are entitled to assume that, subject to appellate or judicial review, its decision will not only be final, it will be treated as such by other adjudicative bodies. The procedural or substantive correctness of the previous proceeding is not meant to be bait for another tribunal with a concurrent mandate. Figliola, above at para. 38.
20I conclude that arbitration decision City of Ottawa and Canadian Union of Public Employees Local 503 (“the Union”) and Nenette Ntema-Mbudi, issued by Arbitrator Michelle Flaherty on February 16, 2017 (“the Arbitration Decision”) has appropriately dealt with the substance of the Application.
21Accordingly, the Application is dismissed.
Dated at Toronto, this 23rd day of October, 2017.
“Signed by”
Josée Bouchard Vice-chair