Zubovits v. Ontario Human Rights Commission, 2007 CanLII 48996 (ON SCDC)

Court File No.: 68/07

Released: 20071101

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

CAPUTO, GANS AND SWINTON JJ.

B E T W E E N:

CHARLES ZUBOVITS

Applicant

• and -

ONTARIO HUMAN RIGHTS COMMISSION and HER MAJESTY IN RIGHT OF ONTARIO as represented by THE MINISTER OF ENVIRONMENT AND ENERGY

Respondents

Raj Anand for the Applicant

Prabhu Rajan for the Ontario Human Rights Commission

Suneel Bahal and Omar Shahab for the Minister of Environment and Energy

HEARD at Toronto: October 2, 2007

SWINTON J.:

1The applicant has brought an application for judicial review seeking to quash two decisions of the Ontario Human Rights Commission (“the Commission”), the first dated February 8, 2006, in which it refused to investigate his human rights complaint, and the second dated October 25, 2006, in which it refused to reconsider the earlier decision.

2The issue in this application is whether the Commission made a patently unreasonable decision in determining that the complaint could or should be more appropriately dealt with under the Crown Employees Collective Bargaining Act, 1993, S.O. 1993, c.38 (“CECBA”) and the Labour Relations Act, S.O. 1995, c. 1 (“LRA”).

Background

Background

3The applicant was employed by the Ministry of Environment and Energy (the “Ministry”) from May 1, 1986 until February 25, 2003, when he was dismissed. At that time, he was working as a Pesticides Officer. He was represented by the Ontario Public Service Employees Union (“OPSEU”) and covered by a collective agreement.

4The applicant filed a grievance alleging dismissal without cause. The termination grievance and two earlier grievances proceeded to mediation with an adjudicator of the Grievance Settlement Board (“GSB”) on December 22, 2003. Among the allegations in the grievances, the applicant claimed that he was subjected to a “stressful and poisoned work environment by constantly being … discriminated against”, that he was subject to harassment and discrimination, and that he had been dismissed without just cause.

5A settlement was reached that day, and the applicant and the union signed the Memorandum of Settlement. The dismissal was rescinded, and the applicant was placed on leave without pay until the date on which he could take early retirement using Factor 80. He was also to be paid a lump sum. As a term of the settlement, he released all claims against the Ministry. If there were any problems in the implementation of the settlement, the GSB remained seized of the matter.

6The applicant claims that he withdrew his consent to the settlement on January 15, 2004. At that time, the Ministry had still not signed the document. However, he ultimately received full payment under the agreement.

7In the spring of 2004, the applicant made a complaint against OPSEU to the Ontario Labour Relations Board (“OLRB”), alleging a breach of the union’s duty of fair representation pursuant to s. 74 of the LRA. This provision states that a union shall not act in a manner that is “arbitrary, discriminatory or in bad faith” in representing employees.

8The OLRB dismissed the complaint on August 20, 2004. In its reasons, the Board stated that it does not permit a person to resile from a settlement agreement unless the individual was coerced into making it or some other unlawful influence was brought to bear, and no coercion or unlawful interference was suggested in this case (at para. 8). The Board then invited the applicant to file any submissions concerning its observations. In a decision dated June 1, 2005, the Board refused to reconsider, both on the grounds of untimeliness, and the fact that the applicant and his counsel had not shown any patent error in the earlier decision.

9In the meantime, the applicant had made a complaint to the Commission on July 5, 2004, alleging discrimination by the Ministry on the basis of age and disability. OPSEU was not named as a party. In the complaint, the applicant stated that he had been diagnosed with workplace stress and depression.

10In its reply to the complaint, the Ministry submitted that there had been no breach of the Human Rights Code, R.S.O. 1990, c. H.19 (the “Code”). Moreover, given that the grievance had been dealt with at the GSB, the Ministry asked the Commission to exercise its discretion not to investigate the matter pursuant to s. 34(1)(a) of the Code, which states:

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; …

the Commission may, in its discretion, decide to not deal with the complaint.

11The Commission staff drafted a Section 34 Analysis, to which the applicant’s counsel replied. The applicant asserted that one of the reasons he entered the settlement was depression, and that he had agreed to the settlement in a “pressure cooker atmosphere” where both the employer and his union were pressing him to settle. Moreover, he claimed that he would not have accepted the agreement had it not been for economic duress and the workplace stress and depression on which the discrimination complaint was founded. His counsel also submitted that the OLRB decision did not show that the applicant’s disability had been a consideration.

12In its decision of February 8, 2006, the Commission held that the complaint could be more appropriately dealt with under the CECBA and the LRA. In its reasons, the Commission noted that the applicant was a member of OPSEU, and through the two Acts, he had access to a grievance procedure in which human rights violations could be fully arbitrated. Reference was also made to the non-discrimination clause in the collective agreement. The Commission noted that the applicant had filed grievances concerning the same situation as referenced in his complaint, including harassment and dismissal from employment, and that a mediated settlement had been reached at the GSB.

13The applicant asked for a reconsideration pursuant to s. 37(1) of the Code, pointing out errors in the Commission’s reasons for decision. Again, counsel reiterated that the settlement was caused by the applicant’s disability and financial duress, and the OLRB had rejected the complaint on labour law principles.

14The Commission refused to reconsider, stating that the complaint could be more appropriately dealt with under the LRA. No mention was made of the CECBA this time. Again, the Commission made reference to the applicant’s trade union membership, the collective agreement provision prohibiting discrimination and the settlement reached in mediation. The Commission added that it was of the view that the complainant understood that human rights issues were covered in his grievances.

15The applicant then launched this application for judicial review. At the outset of the oral hearing, counsel for the applicant indicated that he would not rely on the affidavit of the applicant found in the Application Record, to which the respondents had objected. Subsequently, he indicated that he had no objection to the review of the OLRB decisions by the members of this Court, as the decisions are a matter of public record.

Standard of Review

Standard of Review

16The standard of review of a decision made by the Commission under ss. 34, 36 or 37 of the Code is “patent unreasonableness” (Losenno v. Ontario (Human Rights Commission) (2005), 2005 36441 (ON CA), 78 O.R. (3d) 161 (C.A.) at para. 18; Thomas v. Ontario (Human Rights Commission) (2001), 2001 5844 (ON CA), 151 O.A.C. 188 (C.A.) at para. 21).

17A decision is patently unreasonable only if it is “evidently not in accordance with reason” or “clearly irrational” (Canada (Attorney General) v. Public Service Alliance of Canada, 1993 125 (SCC), [1993] 1 S.C.R. 941 at paras. 44-46).

Were the Decisions Patently Unreasonable?

Were the Decisions Patently Unreasonable?

18The applicant submits that the decisions of the Commission were patently unreasonable because the Commission mechanically and inflexibly applied s. 34(1)(a) of the Code and failed to consider a number of factors highly relevant to the issue of the availability of a more appropriate procedure, including the fact that the applicant was essentially coerced into the settlement because of economic duress and disability; that he withdrew his consent before the Ministry signed the agreement; that the union took the position that the settlement was binding after the applicant withdrew his consent; and the union’s inaction and lack of assistance could not be remedied, since the LRA complaint against the union was dismissed.

19The Commission and the Ministry submit that the decisions of the Commission were not patently unreasonable, given the material before it.

20In exercising its discretion pursuant to s. 34(1) (a) of the Code, the Commission must assess whether the particular complaint before it could be more appropriately dealt with through a procedure under another Act (Thomas v. Ontario (Human Rights Commission), supra at para. 24). In Thomas, the Court of Appeal held that the Commission erred in refusing to investigate a complaint simply because of the existence of the grievance and arbitration provisions under the LRA. In that case, the complainant’s dismissal grievance had been rejected by an arbitrator, who did not deal with the allegations of sexual harassment contained in her human rights complaint. The Commission was held to have made a patently unreasonable decision, because it knew that the complainant did not raise and could not have raised the issue of discrimination before the arbitrator (at paras. 25-26).

21The applicant submitted that this is a case like Pritchard v. Ontario (Human Rights Commission) (1999), 1999 15058 (ON SCDC), 45 O.R. (3d) 97 (Div. Ct.). In that case, the Commission had refused to deal with a complaint pursuant to s. 34(1)(b), because the subject matter of the complaint “is trivial, frivolous, vexatious or made in bad faith”. In its policy guidelines, the Commission took the view that a complaint brought after the complainant had signed a full and final release would almost always be evidence of bad faith, with the only exception being duress. However, economic duress was excluded from the concept of duress. The Divisional Court held that the Commission had improperly fettered its discretion, and that it must consider the facts of the particular case to determine whether the complainant had acted in bad faith in bringing her complaint (at 103-4).

22This is not a case like Pritchard¸ where the Commission had fettered its discretion. It is evident in the reasons for the Commission’s decisions and from the material before it that the Commission did not automatically defer to the grievance procedure, but did turn its mind to the facts of the particular case, as instructed in Thomas as well as Gurofsky v. Ontario (Human Rights Commission) (2004), 2004 20043 (ON SCDC), 70 O.R. (3d) 25 (Div. Ct.) at para. 17.

23The applicant submits, however, that the Commission failed to address his argument that the grievance procedure was inadequate because the settlement reached was obtained because of duress and his disability.

24The Commission did not make direct reference to this argument in its reasons for decision, and it is unfortunate that it did not do so. However, this Court in Gismondi v. Ontario (Human Rights Commission), 2003 21371 (ON SCDC), [2003] O.J. No. 419 (Div. Ct.) commented that the Commission is not required to give elaborate and lengthy reasons in screening complaints pursuant to s. 34 (at para. 38). The Court also stated that in reviewing a tribunal’s decision, a court could look at the material before the tribunal to determine whether there is a rational basis for the result (at para. 39).

25The Commission’s task was to determine whether, on the facts of this particular case, the complaint could or should be more appropriately dealt with under another Act. In my view, there is a rational basis for the Commission’s decision to exercise its discretion not to deal with the applicant’s complaint. The applicant availed himself of the dispute resolution process under the CECBA. That Act incorporates s. 48(12) of the LRA, which permits labour arbitrators to apply human rights legislation. In addition, there was a non-discrimination clause in the collective agreement. Therefore, the applicant had access to an arbitration procedure that was capable of adjudicating human rights issues.

26Notwithstanding the applicant’s assertions in his factum that the dismissal grievance did not specifically raise human rights grounds, the three grievances dealt with the same issues raised in his human rights complaint - namely harassment, a poisoned work environment and unjust dismissal.

27This is not a case like Thomas, supra, where the arbitration had occurred and had not addressed the complainant’s human rights issues. Here, the human rights issues raised in the applicant’s complaint overlapped with his grievances, and they were addressed by the settlement. In exercising its discretion under s. 34(1)(a), the Commission is not limited to situations where there has been an arbitration (see for example, Mianowski v. Ontario (Human Rights Commission), [2003] O.J. No. 3789 (Div. Ct.); Lee v. Ontario (Human Rights Commission), [2000] O.J. No. 4905 (Div. Ct.)) . Rather, the provision allows the Commission to screen out a complaint that could be or should be dealt with more appropriately under another Act.

28The applicant participated in a consensual mediation before a GSB arbitrator in which he was represented by OPSEU. An appropriate settlement was reached. Moreover, the applicant’s complaint shows that he was aware that he was “signing his human rights away” by entering the settlement agreement.

29While the applicant claims that he was subject to economic pressure, there is nothing in the record to indicate that his economic concerns were more significant than those faced by any other employee who has been terminated.

30The applicant alleges that disability played a role in his agreement to the settlement. However, there is no medical or other evidence in the material put before the Commission to show the nature and extent of his alleged mental disability and the specific impact it had on his ability to enter into the settlement agreement. In contrast, in the Brine case on which he relies, the complainant had put forward information about his vulnerable mental condition at the time of a settlement, including reports from medical experts about his condition (Brine v. Canada (Attorney General), 1999 8725 (FC), [1999] F.C.J. No. 1439 (T.D.)). Here, the applicant alleges a mental disability without any explanation of any impairment caused by that disability that negatively affected his ability to negotiate and agree to a settlement.

31Moreover, the applicant proceeded with a duty of fair representation complaint before the OLRB, where he could have raised issues about the effect of his disability and duress on the settlement. He apparently did not do so, and he has not brought a complaint against the union with respect to the settlement.

32The fact that the Ministry had not signed the settlement agreement before the applicant tried to withdraw his consent does not undermine the agreement. The parties clearly had reached a settlement on December 22, 2003 on the terms set out in the document which the applicant signed.

33Given the material before it, the Commission had a rational basis not to refer the complaint for investigation, because the subject matter could or should be more appropriately dealt with under CECBA and the LRA. Therefore, the application for judicial review is dismissed.

34Given that the Commission played the primary role in responding to this application, costs to the Commission are fixed at $3,500.00 and to the Ministry at $1,500.00.

Swinton J.

Caputo J.

GANS J. (Concurring)

GANS J. (Concurring)

35I have had the benefit of reading the Judgment of my colleague, Swinton J. While I agree with her conclusion that the decision of the Commission was not patently unreasonable, I am of the opinion that the reasoning driving its conclusion that the applicant’s complaint could or should be more appropriately dealt with under the CECBA and LRA is flawed.

36I am satisfied from a review of the Record, which includes not only the impugned decisions, but the Section 34 Analysis, that the Commission failed to consider one of the issues with which it was presented, namely, whether or not the settlement purportedly concluded by the applicant and his employer in December 2003 was vitiated by the allegations of coercion or undue influence about which the applicant is now heard to complain.

37However, the decision of the Commission that the applicant had a more than adequate alternative remedy available to him, as embodied in an application before the OLRB is not patently unreasonable. While he clearly brought an application in which he sought to resile from the settlement, he failed to adduce any evidence or even advance an argument that the settlement was arrived at as a result of coercion or undue influence. Indeed, he arguably had a further opportunity to fill this seeming void when, through counsel, he requested that the OLRB reconsider its decision of August 20th, 2004, after the issues were squarely brought to his attention in the reasons for decision of Vice Chairman Albertyn. In my opinion, advancing these arguments first before the Commission when they could or should have been raised at first instance in an application under either the CECBA or the LRA, or both, was fatal to the instant application.

Gans J.