COURT FILE NO.: 78/06

DATE: 20061026

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

CHAPNIK, MACKENZIE AND SEDGWICK JJ.

B E T W E E N:

UNITED FOOD AND COMMERCIAL WORKERS INTERNATIONAL UNION, LOCALS 175 & 633

Applicant

• and -

PORT COLBORNE POULTRY LIMITED and STANLEY SIMPSON, ARBITRATOR

Respondents

Georgina Watts and Rebecca Woodrow, for the Applicant

Barry W. Adams, for Port Colborne Poultry Limited

HEARD: September 25, 2006

BY THE COURT:

1This is an application by the United Food and Commercial Workers International Union, Local 175 and 633 (the “applicant”) for judicial review of the award dated September 14, 2005 (the “Award”) issued by arbitrator, Mr. Stanley Simpson (the “Arbitrator”).

2The Arbitrator was appointed on consent of the parties, pursuant to the provisions of the Ontario Labour Relations Act, S.O. 1995, c.1, Sch. A (the “LRA”) to hear two grievances filed on or about April 7, 2005 by the applicant on behalf of Troy Fraser (the “grievor”). One grievance alleged unjust suspension of the grievor’s employment and one grievance alleged discrimination and/or harassment on the basis of disability.

3The applicant grieved that the respondent had breached the provisions of the Ontario Human Rights Code, R.S.O. 1990, c.H.19 (the “Code”) when it directed the grievor to clean up the workplace washroom on or about April 6, 2005, and disciplined him when he refused to comply.

4The applicant claims that the Arbitrator erred by incorrectly applying the provisions of the Code. Specifically, he erred when he found the respondent’s direction to the grievor to clean up the workplace washroom was reasonable and failed to find that such direction was discriminatory and/or harassing on the basis of the grievor’s disability, as prohibited by the provisions of the Code.

5Further, the applicant submits that the Arbitrator erred when he held that discrimination and harassment, as prohibited by the provisions of the Code require more than one instance of discrimination or harassing behaviour and intent on the part of the respondent.

6The respondent’s position, simply stated, is that the Arbitrator made no errors as alleged, and that the subject matter of the arbitration and the award under review is, in essence, a decision about industrial discipline.

BACKGROUND

7The underlying facts can be briefly summarized as follows:

(i) The applicant is the exclusive bargaining agent on behalf of the employees of the respondent employer. The respondent operates a poultry processing facility located in Port Colborne, Ontario.

(ii) The grievor was a full-time employee at the respondent’s facility. After a lengthy absence arising from a diagnosis of Hepatitis C, he returned to employment performing general duties in the packing department. There are approximately 140 employees in the workplace, and it was common knowledge that the grievor had been suffering from Hepatitis C.

(iii) There was no protocol in place at the workplace to deal with the grievor or any employee suffering from an infectious disease.

(iv) When at work, on or about April 6, 2005, the grievor suffered a nosebleed. While in the workplace washroom, he cleaned his bloody nose with a tissue, then put the tissue in the washroom garbage pail.

(v) As a result of concern expressed by some bargaining unit employees, the grievor’s supervisor requested that he empty the garbage pail containing the tissue and then sanitize the washroom stall with a hand-held aerosol cleaner. Although this was not part of the grievor’s normal workplace duties, no other union employee was willing to perform this task.

(vi) The grievor responded negatively to the direction to clean up the workplace washroom. He became very angry and upset, informing the supervisor he felt it was discriminatory to require him to perform washroom clean up duties. He then refused to comply with the request, addressing the supervisor in a “very loud and insolent manner”.

(vii) In response to the grievor’s refusal to clean the workplace washroom and his outburst, the respondent suspended the grievor’s employment for one and one-half days. The grievances arose out of the discipline imposed on the grievor for his insubordination and insolence following the direction of the employer to clean the washroom.

THE AWARD

8As noted above, the Arbitrator found that the respondent’s request to the grievor to clean the workplace washroom was reasonable in the circumstances and, therefore, failure to follow the request represented insubordination that justified disciplinary action.

9Further, the Arbitrator found no violation of the Code. He held that in order to constitute a violation of the Code, there must be some course of conduct and intent on the part of the respondent.

10The Arbitrator reduced the penalty to a half-day suspension from the one and one-half day suspension imposed by the respondent, on the condition that the grievor tender an apology to the supervisor involved in the incident.

THE RELEVANT LEGISLATION

A. The Labour Relations Act

11Section 48(12)(j) of the LRA respecting the application of the Code provides as follows:

An arbitrator or the chair of an arbitration board, as the case may be, has the power,

(j) to interpret and apply human rights and other employment related statutes, despite any conflict between those statutes and the terms of the collective agreement. 1995, c.1, Sched. A, s.48(12).

Section 48(18) of the LRA, addresses the effect of an arbitrator’s decision in the following terms:

The decision of an arbitrator or of an arbitration board is binding,

(a) upon the parties;

(b) in the case of a collective agreement between a trade union and an employers’ organization, upon the employers covered by the agreement who are affected by the decision;

(c) in the case of a collective agreement between a council of trade unions and an employer or an employers’ organization, upon the members or affiliates of the council and the employer or the employers covered by the agreement, as the case may be, who are affected by the decision; and

(d) upon the employees covered by the agreement who are affected by the decision, and the parties, employers, trade unions and employees shall do or abstain from doing anything required of them by the decision. 1995, c.1 Sched. A, s.48(18).

B. The Human Rights Code

12The pertinent provisions of the Code are found in the following sections:

s.5(1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, same-sex partnership status, family status or disability.

s.5(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, pace of origin, colour, ethnic origin, citizenship, creed, age, record of offences, marital status, same-sex partnership status, family status or disability.

s.10(1) …

“disability” means,

(a) any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness and, without limiting the generality of the foregoing, includes diabetes mellitus, epilepsy, a brain injury any degree of paralysis, amputation, lack of physical co-ordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment, or physical reliance on a guide dog or other animal or on a wheelchair or other remedial appliance or device,

“harassment” means engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome;

There is no dispute that the grievor was disabled within the meaning of sub-section 10(1)(a).

STANDARD OF REVIEW

13The Supreme Court of Canada adopted the standard of reasonableness for reviewing decisions of labour arbitrators acting under Alberta’s Labour Relations Code in Voice Construction Ltd. v. Construction & General Workers’ Union, Local 92, 2004 SCC 23, [2004] 1 S.C.R. 609 and Alberta Union of Provincial Employees v. Lethbridge Community College, 2004 SCC 28, [2004] 1 S.C.R. 727.

14However, the Ontario Court of Appeal in Teamsters Union, Local 938, v. Lakeport Beverages, 2005 29339 (ON CA), [2005] O.J. No. 3488 (C.A.), upheld the standard of patent unreasonableness for decisions made by labour arbitrators acting under the Ontario Labour Relations Act, holding that the application of the pragmatic and functional approach established in Re Pushpanathan v. Canada (Minister of Citizenship and Immigration), 1998 778 (SCC), [1998] 1 S.C.R. 982, requires a highly deferential standard of review of decisions made by labour arbitrators acting under the Ontario LRA.

15At the same time, the standard of review may vary according to the nature of the question before the Tribunal. Where the case involves a question of statutory interpretation, the standard of review is correctness: Newfoundland Association of Public Employees v. The Queen in Right of Newfoundland (1996), 1996 190 (SCC), 134 D.L.R. (4th) 1 (S.C.C.); Ontario Nurses’ Association v. Orillia Soldiers Memorial Hospital (1999), 1999 3687 (ON CA), 42 O.R. (3d) 692 (C.A.); Ontario Secondary School Teachers’ Federation v. Upper Canada District School Board, 2005 34365 (ON SCDC), [2005] O.J. No. 4057, at p.6 (Div. Ct.).

16The Divisional Court has also held that deference is to be accorded to decisions of arbitrators involving the exercise of expertise in applying the Code where there are questions of mixed fact and law: Re Amalgamated Transit Union, Local 113 v. Toronto Transit Commission, 2005 2046 (Div. Ct.).

17In applying that standard, this Court in Hamilton (City of) v. Canadian Union of Public Employees, Local 5167, 2003 10959 (Div. Ct.) stated:

“….It is submitted that there is also an issue of interpretation of the Ontario Human Rights Code and that the Court ought to review that portion of the decision on the standard of correctness. For the purpose of today, we accept that standard but we point out that the Labour Relations Act expressly directs arbitrators to have regard to the Human Rights legislation and as a result it may well be that such legislation falls within the decision of the Toronto (City) Board of Education v. O.S.S.T.F., District 15, 1997 378 (S.C.C.), [1997] 1 S.C.R. 487, where the correctness standard is subject to some relaxation where the arbitrator is dealing with legislation that is ultimately connected with or encountered frequently in the course of labour arbitrations. (emphasis added).

ANALYSIS

18The crux of the applicant’s argument rests on the Arbitrator’s failure to find a violation of the Code. Clearly, arbitrators have the authority under the LRA to interpret and apply human rights statutes.

19In advancing its argument, the applicant forcefully contends that the Arbitrator failed to distinguish between the elements of discrimination in accordance with s.5(1) of the Code and harassment pursuant to s.5(2) of the Code.

20The applicant specifically challenges the following paragraph of the Arbitrator’s reasons:

“The grievance over harassment and discrimination in these circumstances is dismissed because I can find no violation of the Code based on this one instance. In order to be a violation of the Code as I read it, there must be some course of conduct and intent and I find on these facts that there was none.”

21The respondent acknowledges that there is no specific discussion in the award as to the operation of s.5(1), the discrimination element. The respondent takes the position, however, that in the circumstances of this case, the applicant is attempting to rely on the provisions of the Code to resist an otherwise appropriate industrial disciplinary measure, and that the arguments based on the Code are collateral to the main issue. Moreover, the respondent submits the Arbitrator did take into account the effect of the discrimination element in the context of the case before him. In this particular case, there was no evidence of discrimination in that the request was an appropriate one in the circumstances, and the grievor’s employment and benefits were not affected by the incident in question.

22The record indicates that the Arbitrator carefully considered the entire case in terms of the salient facts and applicable law. He concluded that he could “find no violation of the Code based on this one instance”.

23The position of the applicant is that a single instance such as the supervisor’s request to empty the garbage pail is sufficient to fall within the proper interpretation of the words “in a course of” as set out in the definition of harassment in s.10(1) and referred to in s.5(2) of the Code.

24In support of this position, the applicant refers to the cases of Prestressed Systems Inc. v. Labourers’ International Union of North America, Local 625, [2005] O.L.A.A. No. 551 and Good Humor-Breyers, Simcoe v. United Food and Commercial Workers’ International Union, Local 175, 2005 94139 (ON LA), 140 L.A.C. (4th) 107. Both of these cases involve the decisions of arbitrators. The first decision treated a racial and ethnic slur made on a single occasion as being sufficient to come within the words “in a course of”. In the second decision dealing with a slur involving the sexual orientation of the grievor, the arbitrator found that such comment made on a single occasion was sufficient to engage s.5(2) of the Code.

25In both of the above decisions, it appears that the arbitrators did not definitively state as a matter of law that a single instance would meet the requirements of the words “in a course of”. In Prestressed Systems Inc., supra, the arbitrator stated at paragraph 57:

57. Adjudicators are directed to look at and assess the totality, or “course”, of comment or conduct, whether that be one comment or several. In summary, I believe that the legislators intended that a single comment could be harassment. (emphasis added)

26We regard the sufficiency of the number of instances to satisfy the requirement of engaging “in a course of [“vexatious comment or conduct”] as a question of mixed fact and law. We find no error by the Arbitrator in concluding that, in the circumstances of the case before him, there had to be more than one instance of the subject conduct to constitute “a course of vexatious comment or conduct” as found in s. 5(2) of the Code.

27Finally, we agree with the respondent’s submission that the subject of the arbitration under review was in essence, a decision about industrial discipline. This is not a case where the grievor was subject to different treatment because of his disability.

28As stated above, the Arbitrator was alive to the issues and took into account all relevant facts. His use of the word “intent” in his generalized statement of the law does not detract from the validity of his findings.

CONCLUSION

29In our view, the Arbitrator made no error in his disposition of the grievances as set out in the award.

30In the result, the application for judicial review is dismissed. If unable to agree on costs, the parties may submit brief written submissions on costs (not to exceed 4 pages, exclusive of supporting materials), within 20 days of the release of these reasons.

CHAPNIK J.

MACKENZIE J.

SEDGWICK J.

Released: October 26, 2006

COURT FILE NO.: 78/06

DATE: 20061026

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT