DIVISIONAL COURT FILE NO.: 8/10
SUPERIOR COURT OF JUSTICE - ONTARIO
(DIVISIONAL COURT)
RE: ISODORA MAYTA v. cANADA LANDS COMPANY, DORIS BRADLEY and caw canada local 4271
BEFORE: Justices Whalen, Molloy, and Swinton
COUNSEL: Ernest J. Guiste, for the Applicant
Michael J. Kennedy, for the Respondents Canada Lands Company and Doris Bradley
Lewis Gottheil, for the Respondent CAW Local 4271
Margaret Leighton, for the Human Rights Tribunal of Ontario
HEARD at Toronto: January 14, 2013
E N D O R S E M E N T
1The applicant filed an application under the Human Rights Code, R.S.O. 1990, c. H.19 (“the Code”) alleging discrimination on the basis of disability against his former employer, Canada Lands Company, and his former union, CAW Canada Local 4271. He withdrew the application against the union in September 2009 during the course of a hearing before the Human Rights Tribunal of Ontario (“the Tribunal”). His application against the employer was dismissed on October 7, 2009, while a reconsideration decision was dismissed on November 27, 2009. He now seeks judicial reviews of four decisions of the Tribunal.
The Interim Decision of June 11, 2009
2The applicant challenges the Tribunal’s decision of June 11, 2009 that barred him from challenging certain findings of fact made by the Ontario Labour Relations Board (“the OLRB”) when it considered and rejected the applicant’s duty of fair representation complaint against the union. The Tribunal held that it would be an abuse of process to allow these findings to be challenged in the human rights proceeding.
3The Tribunal’s decision to prohibit re-litigation of issues already determined by the OLRB was reasonable, especially given the Tribunal’s mandate to resolve complaints before it expeditiously. There is nothing unfair or unusual in this decision, which is a normal part of the Tribunal’s control of its own process. All courts resist the waste of time and resources resulting from such efforts to re-litigate matters.
The Ruling on Bias
4The Tribunal rejected the allegation of reasonable apprehension of bias in a ruling on September 18, 2009. There is nothing in the record that would support such an allegation.
5The mere fact that the Tribunal made a ruling not entirely favourable to the applicant in an earlier decision does not give rise to a reasonable apprehension of bias. Nor did the comments made suggest that the Tribunal member was approaching the issue before her with a closed mind. Rather, the Tribunal was controlling its own process and in a reasonable way.
The Production Decision
6The Tribunal did not deny procedural fairness to the applicant by refusing to order the employer to make production of further documents during the hearing on the merits. Production and disclosure had been dealt with at a prior hearing. The employer provided extensive documentation months before the hearing, and the applicant raised no objection and made no further request until after the hearing had begun.
7The Tribunal reasonably rejected the request for production during the hearing. The applicant had had ample opportunity to address the production of documents. Granting the request would have only caused delay. The decision was within the Tribunal’s discretion, which was reasonably exercised in the circumstances and based on the Tribunal’s rules.
The Decision on the Merits
8The Tribunal reasonably concluded that the applicant had failed to prove discrimination by the employer on the basis of disability. The adjudicator adequately explained her conclusions. She found that the applicant had not established any failure to accommodate his need for shift changes, and the employer’s motivation for dismissal was the applicant’s misconduct. She found no evidence that the employer’s decision to terminate was tainted by a discriminatory motive.
9The applicant argues that the Tribunal erred in relying on hearsay evidence in coming to the decision that the termination was not motivated by discrimination. We disagree. The adjudicator explained that it was not her role to determine the merits of each of the events relied upon by the employer to justify the decision to dismiss. Her role was to determine whether the employer’s reliance on misconduct was in good faith and not a pretext. Consequently, she looked at the inquiries made by the employer, as well as the union. She also noted that some of the events were not contested. Ultimately, she concluded that disability and the need for accommodation were not factors in the decision to terminate his employment. That decision was a reasonable one, supported by the evidence before her.
Conclusion
10Accordingly, the application for judicial review is dismissed.
11The Tribunal does not seek costs, and none are awarded. The applicant may make written submissions, including an affidavit on his financial situation, within 30 days of the hearing date. The employer and union shall have 15 days to respond. All submissions are to be made through the Divisional Court office.
Whalen J.
Molloy J.
Swinton J.
Released: January 15, 2013