Parkinson v. Toronto Transit Commission, 2017 HRTO 1426

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Anthony Parkinson

Applicant

-and-

Toronto Transit Commission

Respondent

INTERIM DECISION

Adjudicator: Douglas Sanderson

Date: October 30, 2017

Citation: 2017 HRTO 1426

Indexed as: Parkinson v. Toronto Transit Commission

APPEARANCES

Anthony Parkinson, Applicant

Cecil Norman, Representative

Toronto Transit Commission, Respondent

Steve Lavender, Counsel

1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) alleging discrimination with respect to employment because of race, colour, ancestry, place of origin and ethnic origin.

Background

2The applicant is a Transit Operator (i.e., a bus driver) for the respondent (the “TTC”). The applicant states that he was subject to discrimination and harassment on February 22, 2012, when he attempted to board a TTC bus on his way to work using his employee identification. The police were summoned and the applicant was physically removed from the bus. The TTC accepted the police officers’ account of the incident and suspended the applicant from work for four weeks. The applicant states that from March 2012 until he was dismissed from employment on September 18, 2012 managerial employees consistently subjected him to harassment and discrimination. The applicant states that he was summoned to several unwarranted meetings in which he was accused of being a “trouble maker” and reprimanded for ruining the image of the TTC with the police. The applicant states that the TTC created trumped up charges against him on August 24, 2012, alleging, untruthfully, that he failed to service a stop. The applicant was at first suspended and then dismissed from employment.

3In its Response, the TTC denied any violation of the applicant’s human rights. Rather, the TTC states that the discipline and discharge it delivered to the applicant was justified based on the applicant’s actions and relatively poor discipline history. The TTC submitted that the discipline flowing from the incident on February 22, 2012 had been settled and had also been the subject of two actions in Small Claims Court. At the time the Response was filed, the applicant’s dismissal was the subject of grievance arbitration proceedings. The TTC submitted that the Tribunal should dismiss the Application pursuant to sections 34(11) and 45.1 of the Code and also because it has no reasonable prospect of success.

4The Tribunal deferred consideration of the Application pending the conclusion of the related grievance arbitration. See 2013 HRTO 1071. Following the conclusion of the arbitration proceeding, the applicant requested reactivation of the Application. The TTC did not oppose this request. The Tribunal set the matter down for hearing on September 23, 2016. By Case Assessment Direction dated August 31, 2016, the Tribunal advised that the hearing would address whether the Application should be dismissed because it has no reasonable prospect of success or pursuant to section 45.1. In a Case Assessment Direction dated September 22, 2016, the Tribunal advised that the parties should be prepared to address section 34(11) of the Code, whether orally at the hearing, or after the fact in writing.

The Hearing

Settlement Evidence

5Matt Hopkins holds the title of Manager, Employee Relations for the TTC. He was affirmed and adopted his witness statement as his evidence after confirming the accuracy of that statement. Mr. Hopkins described the grievance and arbitration process set out in the collective agreement between the TTC and the applicant’s trade union, the Amalgamated Transit Union, Local 113 (“ATU 113”). His evidence was that the applicant’s grievance regarding the incident of February 22, 2012 was settled at the first step of the grievance process. Where a grievance is settled at the first step, there are no formal Minutes of Settlement. Rather, there is a memorandum regarding the discipline interview and a memorandum setting out the resolution of the grievance. Mr. Hopkins identified two memoranda, dated respectively April 25 and April 27, 2017, as the documents applicable to the applicant’s grievance regarding the February 22, 2012 incident. The memorandum of April 27, 2012 indicated that the applicant was reinstated to his position on certain conditions.

The Shime Award

6As noted above, the TTC dismissed the applicant following an incident in late August 2012. The termination of the applicant’s employment proceeded to arbitration before arbitrator O.B. Shime. Arbitrator Shime issued his award on October 2, 2015. Arbitrator Shime found that the TTC dismissed the applicant for uncooperative, inappropriate and unprofessional behaviour and that the applicant had indeed been uncooperative and had behaved inappropriately. Mr. Shime found that the applicant had been “defiant and disrespectful of his supervisors and his inappropriate and uncooperative behaviour was equivalent to insubordination.” Mr. Shime found that the TTC had just cause to discipline the applicant, but mitigated the sanction of dismissal and substituted and unpaid suspension from the date of his dismissal to August 20, 2015.

The Applicant’s Submissions re s.45.1

7The applicant’s submission was that none of the proceedings involving the applicant had addressed the human rights issues raised in the Application. The applicant submitted that the Tribunal would not have to reverse any of the decisions made by other adjudicators, who focussed on the applicant’s behaviour. Rather, the Tribunal would be required to evaluate the respondent’s behaviour to determine whether the applicant’s human rights were violated.

Analysis and Decision

8Section 45.1 of the Code states 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.

The February 22, 2012 Incident

9In Dunn v. Sault Ste. Marie (City), 2008 HRTO 149, the Tribunal found that a settlement of a proceeding dealing with the same facts and issues as an application was a proceeding that appropriately dealt with the substance of the application. In Van Barneveld v. I.O.O.F. Seniors Homes, 2009 HRTO 448 and Vere v. Canadian Auto Workers, 2011 HRTO 748, the Tribunal found that a settlement of a union grievance based on the same facts and issues arising in an application is a proceeding that has appropriately dealt the substance of the application.

10Mr. Hopkins un-contradicted evidence was that the applicant’s grievance regarding the February 22, 2012 incident was settled at the first step of the grievance procedure set out in the collective agreement between the TTC and the ATU 113. His evidence was also that the TTC and the applicant’s trade union do not draft formal Minutes of Settlement when grievances are settled at this stage. Rather, the memoranda of April 25 and 27, 2017 form the agreement to return the applicant to work. Mr. Hopkins’ evidence was undisturbed by cross-examination and I accept his evidence. In these circumstances, I find that the applicant’s grievance regarding the February 22, 2012 incident was settled and that the settlement was a proceeding that appropriately dealt with the substance of this aspect of the Application. Accordingly, the applicant’s allegations regarding the incident of February 22, 2012 are dismissed.

Termination of Employment

11Anti-discriminatory legislation is subject to the concurrent and overlapping jurisdiction of an array of administrative decision-makers. See: Tranchemontagne v. Ontario (Director, Disability Support Program), 2006 SCC 14, [2006] 1 S.C.R. 513; and Prelogar v. Fine Line Imports Inc., 2011 HRTO 1458. The Tribunal has held on several occasions that a labour arbitration is a proceeding for the purposes of section 45.1. See for example, Wei v. Seneca College of Applied Arts and Technology, 2010 HRTO 2046; and Delos Santos v. Maple Lodge Farms, 2009 HRTO 1690. Accordingly, the issue is whether Mr. Shime’s award “appropriately dealt with the substance of the Application.”

12The Supreme Court of Canada decision in British Columbia (Workers’ Compensation Board) v. Figliola, 2011 SCC 52, dealt with the interpretation of section 27(1)(f) of the British Columbia Human Rights Code, RSBC 1996, c 210 as amended (the “B.C. Code”), which is nearly identical to section 45.1 of the Code. In that decision, the Court described the analysis a Tribunal should undertake when assessing whether the substance of a complaint has been appropriately dealt with in another proceeding, as follows, at paragraph 37:

“…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 mirrored the one the Tribunal prefers or uses itself…”.

13The Tribunal has found that the analysis adopted in Figliola, above, applies in Ontario and binds the Tribunal. See: Gomez v. Sobeys Milton Retail Support Centre, 2011 HRTO 2297 at paragraph 25. In Paterno v. Salvation Army, 2011 HRTO 2298, the Tribunal stated as follows at paragraphs 25-29:

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 Qiu 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. In Cunningham v. CUPE 4400, 2011 HRTO 658, a complainant who narrowed the allegations in the previous proceeding to exclude human rights issues was precluded from later pursuing the human rights issues at the Tribunal. If there is a legal or factual finding in a previous proceeding, whether explicit or implicit, that makes it impossible for an application or part of an application to succeed, the application or part must be dismissed. (Emphasis added)

I turn now to the application of these principles where an arbitrator has previously dealt with the issue of cause for discipline. Collective agreements in unionized workplaces generally require that discipline be for just cause. When disciplinary measures are grieved, the onus is on the employer to prove, on a balance of probabilities, that there was cause for discipline. If cause is proven, an arbitrator may substitute a different penalty unless there is a specific penalty in the collective agreement (Labour Relations Act, 1995, S.O. 1995, c. 1, Sched. A, s. 48(17)). An arbitrator has the power and the duty to interpret and apply the Code (Labour Relations Act, s. 48(12)(j)), and collective agreement rights and obligations must be interpreted in light of the Code: Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42.

It follows that there is no just cause for discipline or discharge imposed in contravention of the Code. When an arbitrator finds that an employer has proven just cause for discipline or discharge, this incorporates a finding that the discipline or discharge is consistent with the Code. Just cause presumes that the discipline was consistent with the employer’s statutory obligations, including those under the Code. (Emphasis added)

The applicant argues that he and the union (which was following his wishes) did not pursue the Code issues and restricted their arguments at the arbitration to the submission there was no cause of discipline and discharge. This argument does not reflect the interaction of the Code and collective agreements and is not desirable as a matter of policy. The Code is not separate from just cause; rather, it infuses this concept and is an important part of it. 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. (Emphasis added)

In my view, the essence of a holding by an arbitrator that there was just cause for discipline or discharge incorporates the conclusion that discharge did not violate the Code. An applicant who fails to raise alleged discrimination with his or her union or who asks the union not to raise such arguments about just cause in an arbitration will face dismissal of a subsequent application at the Tribunal regarding the discipline or dismissal. It would be an improper review of the substance of an arbitrator’s decision, contrary to the principles in Figliola, to continue an application related to discipline or discharge where an arbitrator has found there was just cause. I need not address in this case the possible situation where the grievor wishes to raise human rights issues but the union refuses to do so. (Emphasis added)

14In 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 in 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.

15Accordingly, and as the respondent submitted, the Tribunal has expressly rejected the applicant’s argument that he should be permitted to pursue human rights issues before this Tribunal because he did not raise them before the arbitrator. Arbitrator Shime’s finding of just cause for discipline implies that the discipline did not violate the Code. Accordingly, this finding makes it impossible for the applicant’s allegations regarding his dismissal to succeed. The applicant had a considerable stake in the labour arbitration proceeding and was in fact successful in being reinstated to employment. In my view, it would not be in the reasonable expectation of the parties that the applicant would be permitted to re-litigate the issue of his dismissal, which would essentially allow the applicant to split his case. In these circumstances, I find it would not be unfair to dismiss the issue of the applicant’s dismissal in light of the arbitration proceeding. I find that Arbitrator Shime’s decision appropriately dealt with the substance of the allegations regarding the termination of the applicant’s employment and these allegations are therefore dismissed.

Remaining Allegations

16With the dismissal of the applicant’s allegations regarding the February 22, 2012 incident and regarding the termination of his employment, the only remaining allegations are found in paragraphs 8-10. These paragraphs contain the applicant’s allegations that between March 2012 and the termination of his employment managerial personnel subjected him to differential treatment compared to his white co-workers and harassed him by requiring him to attend meetings in which he received unwarranted criticism. The allegations have not been the subject of any other proceeding; therefore, neither section 45.1 nor 34(11) is applicable. The issue therefore is whether these allegations should be dismissed because they have no reasonable prospect of success.

No Reasonable Prospect of Success

17Rule 19A.1 of the Tribunal’s Rules of Procedure provides:

The Tribunal may hold a summary hearing, on its own initiative or at the request of a party, on the question of whether an Application should be dismissed in whole or in part on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.

18In Dabic v. Windsor Police Service, 2010 HRTO 1994, the Tribunal made the following comments regarding the concept of no reasonable prospect of success at paragraphs 8-10:

In some cases, the issue at the summary hearing may be whether, assuming all the allegations in the application to be true, it has a reasonable prospect of success. In these cases, the focus will generally be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation.

In other cases, the focus of the summary hearing may be on whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated. Often, such cases will deal with whether the applicant can show a link between an event and the grounds upon which he or she makes the claim. The issue will be whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him or her can show a link between the event and the alleged prohibited ground.

In considering what evidence is reasonably available to the applicant, the Tribunal must be attentive to the fact that in some cases of alleged discrimination, information about the reasons for the actions taken by a respondent are within the sole knowledge of the respondent. Evidence about the reasons for actions taken by a respondent may sometimes come through the disclosure process and through cross-examination of the people involved. The Tribunal must consider whether there is a reasonable prospect that such evidence may lead to a finding of discrimination. However, when there is no reasonable prospect that any such evidence could allow the applicant to prove his or her case on a balance of probabilities, the application must be dismissed following the summary hearing.

19At a summary hearing, the test the Tribunal applies is that of no reasonable prospect of success, which is determined by assuming the applicant’s version of events is true unless there is some clear evidence to the contrary. Accepting the facts alleged by the applicant does not include accepting the applicant’s assumptions about why they were treated unfairly. The mere fact that a person identified by a prohibited ground of discrimination experiences some kind of disagreeable or unfair treatment is not generally sufficient to support an inference of discrimination. The question that the Tribunal must decide at a summary hearing is whether there is likely to be sufficient direct or indirect evidence available to connect the unfair treatment experienced by the applicant with the applicant’s personal characteristics. However, if the applicant is unable to point to circumstances beyond his or her own assumptions or belief, the application may be found to have no reasonable prospect of success.

20In this case, the applicant alleges that he was subjected to harassment and disrespectful behaviour not experienced by white co-workers. The applicant has also provided witness statements providing the expected evidence of several witnesses the applicant intends to present. Amongst other things, these statements indicate that these witnesses can give evidence about the differential and harassing behaviour the applicant experienced in particular and the treatment of black Jamaican employees in general. The applicant’s remaining allegations are not well particularized and it is not clear that the evidence the applicant’s witnesses can provide direct evidence about the remaining incidents. Nonetheless, I cannot find in these circumstances that these allegations have no reasonable prospect of success. Pursuant to Rule 19.6A, where the Tribunal decides not to dismiss an Application following a summary hearing, it need not give reasons, and I find it unnecessary to comment further.

Order

21The Tribunal orders as follows:

1. The allegations set out in paragraphs 8, 9, and 10 of the narrative to the Application shall continue; and,
2. All of the remaining allegations are dismissed.

Next Steps

22The Tribunal shall schedule this matter for a two-day hearing and the Registrar shall issue a Notice of Hearing advising the parties of the date and time of the hearing.