COURT OF APPEAL FOR ONTARIO
McMURTRY C.J.O., ABELLA AND MacPHERSON JJ.A.
B E T W E E N :
JEAN THOMAS
Jacquie Chic
for the appellant
(Appellant)
Cathryn Pike
and
for the respondent, Ontario
Human Rights Commission
ONTARIO HUMAN RIGHTS COMMISSION,
MIDAS CANADA INC.
Paula Rusak
for the respondent, Midas
(Respondents)
Canada Inc.
Geri Sanson
for the intervener, Ontario
Coalition of Rape Crisis Centres
Leslie McIntosh
for the intervener, Attorney
General for Ontario
Heard: September 4, 2001
On appeal from the judgment of the Divisional Court (John G. O’Driscoll, Claire Marchand and Catherine D. Aitken JJ.) dated October 24, 2000.
OVERVIEW
1The appellant appeals from the majority decision of the Divisional Court which dismissed her application for judicial review of decisions of the Human Rights Commission (“Commission”) under ss. 34(1)(a) and 37 of the Human Rights Code, R.S.O. 1990, c. H.19 (“Code”). The Commission decided under s. 34(1)(a) that the appellant’s complaints of discrimination and harassment under the Code were more appropriately dealt with as part of her grievance related to her dismissal from employment with the respondent, Midas Canada Inc. (“Midas”). The grievance of the appellant’s dismissal was filed pursuant to her union’s collective agreement and was dealt with through the arbitration process provided by the Labour Relations Act, 1995, S.O. 1995, c.1, Sch. A. (“LRA”).
2The majority of the Divisional Court also dismissed the appellant’s application for judicial review of the Commission’s decision under s. 37 of the Code whereby the Commission dismissed her request to reconsider its decision not to deal with her complaint.
STATEMENT OF THE FACTS
3The appellant was employed by the respondent Midas from November 13, 1974 until April 25, 1995 and worked variously as a machine operator, a stock controller and a forklift operator in a male-dominated workplace (there were 3 women out of a workforce of about 175). Midas terminated the appellant’s employment effective April 26, 1995, following a workplace incident where the appellant was alleged to have verbally harassed and threatened a co-worker, Basil Brown, who was also a union steward. There had been long-standing bad feelings between the appellant and Brown and she had made many complaints to her employer and to her union that he was harassing her, although the complaints did not originally allege harassment of a sexual nature.
4The appellant was a member of the United Steelworkers of America (“USWA”) which had a collective agreement with Midas. The collective agreement contained a provision, Article III, that incorporated the terms of the Human Rights Code and that gave bargaining unit members the right to file grievances related to alleged breaches of the Code. Before filing her complaint to the Commission, the appellant had filed various grievances pursuant to the collective agreement. Only her grievance with respect to her termination with Midas proceeded to arbitration.
5Prior to the arbitration hearing in 1995, the appellant had complained in late 1994 that the union was not properly representing her interests. She complained specifically that her co-worker, Basil Brown, who was a union steward, was in a conflict of interest. Michael Lewis, the Ontario Staff Representative of the appellant’s union (USWA) in charge of human rights and women’s issues, investigated the appellant’s complaints and concluded that the appellant had been harassed, but not sexually. Lewis also concluded that the appellant’s workplace was not a comfortable, friendly environment for women and that Midas was not willing to put on workplace training and education. He said the appellant was not easy to get along with, was “blunt and spunky” and that there were very bad feelings between the appellant and Basil Brown.
6Following a five-day arbitration hearing which commenced on June 19, 1995, the arbitrator dismissed the termination grievance, concluding that Midas had just cause for dismissal. The decision of the arbitrator, which was released on November 17, 1995, made very brief references to the appellant’s complaints of harassment and discrimination, including a reference to the fact that the appellant had filed a complaint against her employer to the Human Rights Commission. He also referred to the report of Michael Lewis to the effect that there was no evidence of any sexual or racial harassment by Brown.
7On June 21, 1995, after the arbitration hearing had begun, the appellant filed a complaint with the Commission against Midas claiming that she was denied the right to equal treatment in employment because of her sex and that she was the victim of harassment because of sex, contrary to ss. 5(1) and 9 of the Code.
8A Case Analysis dated January 8, 1996 and prepared by an officer of the Commission states that “the evidence indicates that the provisions of the LRA could appropriately deal with the issues raised in the complaint.” The Case Analysis also stated that the appellant had filed two grievances in 1993 with respect to harassment and discrimination, which were later withdrawn. This analysis formed the basis for the Commission’s decision not to deal with the appellant’s complaint under s. 34(1)(a).
9In a letter to the Commission dated March 1, 1996, the appellant indicated that the grievances referred to in the Case Analysis did not relate to harassment and discrimination. She maintained that her grievances against Midas and Brown concerning harassment and discrimination had not been dealt with by arbitration under the provisions of the LRA. She also noted that she was not currently a union member or employee because she had been terminated. She stated that while she would have liked her complaints to have been dealt with through the grievance procedure, they had not been and the only route left was the Commission.
10On July 4, 1996, the Commission gave its decision under s. 34(1) of the Code to not deal with the complaint on the basis that it could more appropriately be dealt with under the provisions of the LRA and the collective agreement. The appellant then applied for a reconsideration of the Commission’s decision pursuant to s. 37 of the Code. She was now represented by legal counsel and her materials filed in support of the reconsideration gave a much more lengthy account of incidents of harassment and discrimination at Midas than did her original complaint. She also included a copy of the arbitrator’s decision, her grievance reports and Lewis’s report.
11The Reconsideration Report of the Ontario Human Rights Commission contains the following statement:
The authority to change the original decision does not arise simply because an application for reconsideration has been filed. … It [the application] must set out material facts; i.e. facts which are relevant to the issue and which are in addition to the facts upon which the original decision was based. [Emphasis added.]
12In its reconsideration decision dated December 12, 1996, the Commission upheld its original decision not to deal with the complaint, again maintaining that the provisions of the LRA could more appropriately deal with the issues raised in the complaint. The Commission stated that “it is the Act and not its application in a particular case which the Commission looked to in making its original decision.” [Emphasis added.]
13The appellant then filed an application for judicial review of the Commission’s decisions. This application was withdrawn, however, when counsel for the Commission advised that the Commission had decided to reverse its December 12, 1996 decision in the light of an incomplete record. In a decision dated December 8, 1997, the Commission gave the following reasons for reversing its decision not to deal with the complaint:
The application for reconsideration raises, among others, the material fact that the arbitrator of the proceeding initiated by the complainant under the LRA did not address whether the complainant has been sexually harassed or discriminated against on the basis of sex, contrary to the Code.
While the Commission is aware that the courts have set out the limited circumstances within which it may reconsider a previous decision, it considers that the material facts set out above properly raise the issue of the integrity of the Commission’s process.
The Commission considers that, in the particular circumstances of this case, it cannot be said that the LRA could “more appropriately” deal with the issues of discrimination because of sex raised in the complaint, when the arbitrator failed to address those very issues in this decision.
14The Commission remitted the complaint for mediation and investigation. On April 24, 1998 the appellant filed an amended and much more detailed complaint relating to incidents going back to 1974. However, in February 1999, the Commission reversed itself once again and stated that the December 12, 1996 decision should not have been declared a nullity and reaffirmed its earlier decision not to deal with the appellant’s complaint. The appellant again launched an application for judicial review of the Commission’s decisions under ss. 34 and 37.
RELEVANT STATUTORY PROVISIONS
Ontario Human Rights Code, ss. 5, 7, 9, 34, 37
- (1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place or origin, colour … sex … or handicap.
(2) Every person who is an employee has a right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, age, record of offences, marital status, family status or handicap.
(2) Every person who is an employee has a right to freedom from harassment in the workplace because of sex by his or her employer or agent of the employer or by another employee.
No person shall infringe or do, directly, or indirectly, anything that infringes a right under this Part.
34.(1) Where it appears to the Commission that,
(a) the complaint is one that could or should be more appropriately dealt with under an Act other than this Act;
(b) the subject-matter of the complaint is trivial, frivolous, vexatious or made in bad faith;
(c) the complaint is not within the jurisdiction of the Commission; or
(d) the facts upon which the complaint is based occurred more than six months before the complaint was filed, unless the Commission is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay,
the Commission may, in its discretion, decide to not deal with the complaint.
(2) Where the Commission decides to not deal with a complaint, it shall advise the complainant in writing of the decision and the reasons therefor and of the procedure under section 37 for having the decision reconsidered.
37.(1) Within a period of fifteen days of the date of mailing the decision and reasons therefor mentioned in subsection 34(2) or subsection 36(2), or such longer period as the Commission may for special reasons allow, a complainant may request the Commission to reconsider its decision by filing an application for reconsideration containing a concise statement of the material facts upon which the application is based.
(2) Upon receipt of an application for reconsideration the Commission shall as soon as is practicable notify the person complained against of the application and afford the person an opportunity to make written submissions with respect thereto within such time as the Commission specifies.
(3) Every decision of the Commission on reconsideration together with the reasons therefor shall be recorded in writing and promptly communicated to the complainant and the person complained against and the decision shall be final.
Labour Relations Act, ss. 48(1) and (12)
- (1) Every collective agreement shall provide for the final and binding settlement by arbitration, without stoppage of work, of all differences between the parties arising from the interpretation, application, administration or alleged violation of the agreement, including any question as to whether a matter is arbitrable.
(12) An arbitrator or the chair of an arbitration board, as the case may be, has power,
(j) to interpret and apply human rights and other employment-related statutes, despite any conflict between these statutes and the terms of the collective agreement.
MAJORITY DECISION OF THE DIVISIONAL COURT
15The majority of the Divisional Court, relying on a long line of previous decisions in that Court, held that the standard of review of a decision of the Commission under ss. 34(1) and 37 of the Code is patent unreasonableness. Writing for the majority, O’Driscoll J. concluded that the appellant’s complaint was a recycling of her grievance of termination. He stated in part:
In my view, it cannot be said that the OHRC’s s. 34 decision of July 4, 1996 was patently unreasonable. Nor can it be said that the OHRC’s s. 37 decision of December 12, 1996 was patently unreasonable. Indeed, I would go further and say that the two impugned decisions of the OHRC prevented the continuance of an abuse of process.
The OHRC is not a forum to be used for recycled wrongful dismissal claims that have been disallowed in another forum.
Under the provisions of s. 2(1) of the Judicial Review Procedure Act … judicial review is a discretionary remedy. In this case, the OHRC has made one s. 34 decision and two decisions under s. 37, the second admittedly without jurisdiction. Having regard to the passage of time, the fact that the Applicant had her five days “in court” before the Arbitrator in 1995, it would not be in the interests of justice to breathe life into these proceedings and further prolong them. For that reason alone, I would refuse a discretionary order of judicial review.
DISSENT OF AITKEN J.
16In her dissent, Aitken J. determined that it was not necessary for her to resolve the issue of which standard of review was appropriate as she considered both the s. 34(1)(a) decision and the s. 37 decision patently unreasonable.
17Aitkin J. concluded that the Commission’s decision under s. 34(1)(a) could not stand because it relied on the mere existence of ss. 48(1) and (12) of the LRA and Article III of the collective agreement to conclude that the provisions of the LRA could appropriately deal with the issues raised in the complaint. Furthermore, Aitken J. concluded that the Commission failed to consider all the relevant facts of the complainant’s case before it concluded whether s. 34(1)(a) applied. She also decided that the Commission’s decision ignored the words “more appropriately” in s. 34(1)(a) and it failed to categorize the true nature of the complaint before considering which forum was more appropriate.
18The dissent further concluded that the Commission did not have sufficient information to be able to conclude that the issues of concern to the appellant could have been more properly dealt with under the collective agreement and the LRA.
19In relation to the Commission’s reconsideration decision, Aitken J. concluded that the Commission applied an overly narrow view of its jurisdiction. She held that the Commission erred when it required new facts before it would reverse a s. 34 decision since the Commission has an unfettered power under s. 37 to reverse such a decision. (See: Commercial Union Assurance et al v. OHRC, discussed infra).
20In conclusion, Aitken J. stated: [t]he “Commission failed to consider that at the heart of it, the complaint was a human rights complaint…” and that the appellant’s complaints “…regarding gender-based harassment and discrimination were in substance not labour relations issues capable of being adequately addressed through the mechanism of the collective agreement.”
ANALYSIS
21The majority of the Divisional Court, relying on a long line of previous decisions in that Court, held that the standard of review of a decision of the Commission under s. 34(1)(a) is patently unreasonable. The dissenting Justice did not disagree with this conclusion. I am inclined to agree with the majority of the Divisional Court on this preliminary issue.
22Accordingly, it is necessary to consider whether the Commission’s decision under s. 34(1)(a) was patently unreasonable. The Commission’s decision, dated July 4, 1996, makes no reference to the appellant’s letter of March 1, 1996 which stated that her harassment and discrimination complaints had not been dealt with in the arbitration of her termination grievance. The reasons given by the Commission include the following statements:
The evidence indicates that the provisions of the LRA and the affiliated collective Agreement could more appropriately deal with the issues raised in the complaints.
The evidence also indicates that the complainant has availed herself of the provisions of the LRA and the collective agreement in question.
For the above reasons, the Commission considers that this complaint could more appropriately be dealt with under the provisions of another Act and thus falls within the provisions of section 34(1)(a) of the Code.
23In my view, these reasons are simply unsupportable. The decision of the arbitrator under the LRA had been given before the decision of the Commission. A review of the decision of the arbitrator reveals that he did not deal with the complaints of harassment and discrimination by the appellant in any significant fashion; he merely acknowledged that the appellant had made such complaints to various parties, including to the Commission.
24In its reconsideration decision of December 12, 1996 under s. 37 of the Code, the Commission upheld its original decision under s. 34(1)(a) of the Code not to deal with the complaint, stating in part that “it is the Act and not its application in a particular case which the Commission looked to in making its original decision.” These reasons confirm that in its s. 34(1)(a) decision, the Commission failed to take into account the statutorily-prescribed consideration of whether the appellant’s particular complaint could or should be more appropriately dealt with under the LRA. I agree with the appellant’s submission that it is not enough that the grievance process simply be available. Section 34(1)(a) requires that the grievance arbitration be more appropriate to deal with the particular complaint than the process under the Code. The issue of appropriateness can only be determined on a case-by-case basis. The Commission’s decision to treat the mere existence of the LRA as determinative of the issue whether to exercise its discretion to not deal with the complaint under s. 34(1)(a), was patently unreasonable.
25While it is important that the Commission have the discretion to determine that another forum is more appropriate, including a labour arbitration, in the circumstances of this case the Commission’s decision cannot stand. No allegation of sexual harassment was made before the Arbitrator. Rather, the complainant alleged in her grievance that the steward of the trade union harassed her in an inappropriate, but not a discriminatory way.
26While it is true that s. 48(12) of the LRA permits an arbitrator to apply human rights statutes, by the time the Commission made its decision not to investigate in this case, the arbitrator had already concluded his hearing and no issue of discrimination had been squarely before him. The Commission therefore made its decision knowing that the complainant did not, and could not, have raised the issue of discrimination before the Arbitrator.
27Turning to the Commission’s decision under s. 37 of the Code, in my view the Commission misunderstood the scope of its reconsideration power. As stated in Re Commercial Union Assurance et al and Ontario Human Rights Commission et al (1988), 1988 CanLII 4589 (ON CA), 47 D.L.R. (4th) 477, this court at p. 479 rejected the proposition that the power of reconsideration by the Commission requires new facts:
We do not agree with counsel for the appellants that the broad power of reconsideration which results in a final decision requires that new facts be established: see Re Merrens and Municipality of Metropolitan Toronto, 1973 CanLII 636 (ON SC), [1973] 2 O.R. 265, 33 D.L.R. (3d) 513 (Div. Ct.). The power is important and may be the only way to correct errors where no right of appeal is provided, or to allow for adjustments even if circumstances remain unchanged. That is the meaning to be given to the maintenance of the integrity of the administrative process.
CONCLUSION
28For the reasons above, the majority decision of the Divisional Court is set aside and the matter is referred back to the Ontario Human Rights Commission for a proper consideration of the complaint under s. 34(1) of the Code.
29The appellant is entitled to her costs here and before the Divisional Court as against the respondents.
“R. Roy McMurtry C.J.O.”
“I agree. R. S. Abella J.A.”
“I agree. “J. C. MacPherson J.A.”
Released: Oct. 29, 2001 “RRM”
