Court File and Parties
CITATION: Zhang v. Human Rights Tribunal, 2018 ONSC 3987
DIVISIONAL COURT FILE NO.: DC 16-1031JR
DATE: 20180625
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
C. Horkins, Fitzpatrick, and King JJ.
BETWEEN:
Mengkai Zhang
Applicant
– and –
Human Rights Tribunal of Ontario, Graham Packaging Canada Company, United Steel Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union (United Steelworkers), Local 243G
Respondents
Self-represented,
S. Fiacco, for the Respondents Human Rights Tribunal of Ontario
B. MacDonald, for the Respondents Filion Wakely Thorup Angelettillp
HEARD at Oshawa: June 25, 2018
Reasons for Judgment
King J (Orally):
[1] The Applicant seeks judicial review of the decision of the Human Rights Tribunal of Ontario (“HRTO”) dated February 5, 2017 (the “Decision”) and reconsideration decision dated May 30, 2017 (“Reconsideration Decision”).
[2] The Decision was made pursuant to s. 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19 (the “Code”).
BACKGROUND
[3] There is a lengthy litigation history with respect to this application for judicial review.
[4] The Applicant was employed as an electrician by Graham Packaging Canada Company (the “Employer”) in Mississauga, Ontario.
[5] The terms and conditions of the Applicant’s employment were governed by a collective agreement between the Employer and his bargaining agent, the United Steel Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union (United Steelworkers), Local 243G (the “Union”). Both of those parties are respondents on this application.
i) Termination and Grievance Proceedings
[6] On March 14, 2014 the Applicant was terminated by the Employer for alleged misconduct. The Union filed a grievance challenging the termination.
[7] The grievance proceeded to arbitration before Arbitrator Larry Steinberg on June 5, 2014. At that hearing, the Employer, the Union and the Applicant agreed to a settlement of the grievance. That settlement was incorporated into an order of the Arbitrator (the “Reinstatement Order”) dated June 6, 2014.
[8] It is important to note that the grievance before Arbitrator Steinberg was settled with the Employer, the Union and the Applicant all signing Minutes of Settlement that were incorporated into the Arbitrator’s award. At no point that date did the Applicant indicate that he did not understand or agree with the steps taken throughout the grievance and arbitrator process.
[9] The Reinstatement Order provided for the reinstatement of the Applicant to employment effective six months after the date of termination with “no loss of seniority but with no compensation.”[^1] In effect, the termination was converted to a six month suspension.
ii) Ontario Labour Relations Board Proceeding
[10] On October 2, 2014, (just after the six-month period of the suspension expired), the Applicant filed a Duty of Fair Representation complaint (Unfair Representation complaint) against the Union pursuant to s. 74 of the Ontario Labour Relations Act, 1995, S.O. 1995, c. 1. That complaint alleged the representation of the Applicant by the Union with respect to the grievance was arbitrary, discriminatory and/ or in bad faith.
[11] Following a hearing, the Unfair Representation complaint was dismissed by the Ontario Labour Relations Board on August 5, 2015.
[12] On October 8, 2015, the Applicant was laid off from employment by the Employer. He was one of a number of employees to be laid off at that time.
iii) Human Rights Tribunal of Ontario Proceeding
[13] The Applicant made application to the Ontario Human Rights Tribunal pursuant s. 34 of the Code on December 12, 2015 (“Human Rights Complaint”), claiming discrimination in his employment on the basis of race in three respects. They were:
(i) an unfair warning letter and denial of day-shift work in 2009;
(ii) unfair termination and reinstatement in 2014; and
(iii) unfair performance management, denial of training opportunities and the lay-off in 2015.
[14] On June 29, 2016 the Tribunal directed a preliminary hearing be held to determine whether the Application should be dismissed in whole, or in part, on the basis that some of the allegations may have been untimely and that there was no reasonable prospect the Application (or at least part of it) could succeed. On January 10, 2017 the Human Rights Tribunal Adjudicator assigned to the case, David Muir, also directed the parties address the issue of whether some or all of the issues on the complaint had been addressed by the decision of Arbitrator Steinberg. In this respect, the issue was whether s. 45.1 of the Code applied.
[15] Following these Case Assessment Directions a summary hearing was held via telephone on January 12, 2017. All parties participated.
[16] Adjudicator Muir issued a decision dated February 15, 2017, dismissing the Human Rights Complaint for the following reasons:
• The alleged discrimination from 2009 and 2011 was out of time pursuant to s. 34 of the Code as it was filed more than one year after the incident occurred;
• The alleged unfair termination and reinstatement in 2014 was appropriately dealt with pursuant to the grievance and arbitration process that occurred from March 28 to June 5, 2014, as provided in s. 45.1 of the Code.
• There was insufficient evidence to support an inference of discrimination on the basis of race in 2015.
[17] The Applicant then sought reconsideration of the February 15, 2017 decision pursuant to s. 45.7 of the Code. That application was dismissed by Adjudicator Muir on May 30, 2017 on the basis that the Applicant did not meet the burden of establishing any of the criteria for reconsideration prescribed in Board rule 26.5.
ANALYSIS
[18] While not clearly identified in the materials filed by the Applicant, a review of the Record reveals there are four issues to be determined on this application for judicial review. They are, as follows:
a) What is the appropriate legal standard of review?
b) Having determined that the standard of review is reasonableness, were the Tribunal’s decisions reasonable?
c) Did the Tribunal act in a manner consistent with procedural fairness?
d) Is there a legal basis for a claim pursuant to the Code on the basis of s. 15 of the Charter of Rights and Freedoms?
[19] For the reasons that follow, this application is dismissed.
[a] What is the Appropriate Standard of Review?
[20] On the issue of denial of procedural fairness there is no standard of review. Rather, the court must decide if the requisite level of procedural fairness has been met taking into account the factors in Baker v. Canada (Minister of Citizenship and Immigration) 1999 699 (SCC), [1999] 2 S.C.R. 817 at paras 23-28: the nature of the decision being made and the process followed in making it; the nature of the statutory scheme and the terms of the statute pursuant to which the body operates; the importance of the decision to the individual affected; the legitimate expectations of the person challenging the decision; and the choice of procedure selected by the agency.
[21] As stated in London (City) v. Ayerswood Development Corp 2002 3225 (ON CA), 167 O.A.C. 120 (C.A.) at para. 10, the court is “required to evaluate whether the rules of procedural fairness or the duty of fairness have been adhered to. The court does this by assessing the specific circumstances giving rise to the allegation and by determining what procedures and safeguards were required in those circumstances in order to comply with the duty to act fairly”.
[22] I find that for the remaining substantive issues, the standard of review is reasonableness.
[23] A reasonable decision is one that falls within a range of acceptable outcomes defensible in both fact and law: Dunsmuir v. New Brunswick, 2008 SCC 9, at paras. 47. Given the specialized expertise that administrative tribunals have with respect to matters before them, the court should give significant deference to their decisions.
[24] On a review of both the Decision and Reconsideration Decision, it is clear that the adjudicator reached conclusions within the range of acceptable outcomes for the reasons that follow. Those decisions should be given deference as prescribed in Phipps v. Toronto Police Services Board, 2012 ONCA 155, [2012] O.J. No. 2061 at para. 10.
[b] Were the Decisions of the Adjudicator Reasonable?
1. The 2009 and 2011 Alleged Incidents
i) Delay In Excess of One Year (s. 34.1 a)
[25] Section 34.1 of the Code provides as follows:
34.1 If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under s. 45.2
(a) Within one year after the incident to which the application relates; or
(b) If there was a series of incidents, within one year after the last incident in the series.
[26] It was clear on the facts that the complaints alleging violations of the Code in 2009 and 2011 were made well beyond the one year mandatory period for filing.
[27] Section 34(2) permits an adjudicator to relieve against the one year time limit if the Tribunal is satisfied that the delay was incurred in good faith. The adjudicator concluded there was no evidence to support a finding the delay was incurred in good faith as there was no reasonable explanation for the delay provided: James v. York University, 2015 ONSC 2234, 339 O.A.C. 68 at para. 52. As well, it was proper for the adjudicator to find the respondent had no reasonable explanation for the delay given his failure to provide such evidence: Jeremiah v. Ontario (Human Rights Commission), [2008] O.J. No. 3013 (Ont., Div. Ct.), at para. 42.
ii) Did the 2009 and 2011 allegations form part of a series of events as prescribed in [s. 34(1)](https://www.canlii.org/en/on/laws/stat/rso-1990-c-h19/latest/rso-1990-c-h19.html#sec34subsec1_smooth)(b) of the [Code](https://www.canlii.org/en/on/laws/stat/rso-1990-c-h19/latest/rso-1990-c-h19.html)?
[28] The Applicant complained of events allegedly occurred in 2009, 2011 and 2014. Having found the 2009 and 2011 allegations untimely, the only way in which those two allegations could be considered is if they formed part of a series of events tied to the 2014 allegations. In this regard, the adjudicator reasonably (and, for that matter, correctly) decided since each of these alleged events occurred more than one year apart, they could not logically form part of a series of events as prescribed in s. 34(1)(b). That is, he found that the gap between 2009, 2011 and 2014 was too great to support a conclusion that the events formed part of a series, even if they were thematically connected.
[29] For this reason I find that Adjudicator Muir’s decision that the 2009 and 2011 alleged incidents were dismissed for delay contrary to s. 34 (2) of the Human Rights Code to have been reasonable. There is no basis to set aside either the Decision or Reconsideration Decision in this respect.
b. The 2014 Termination
[30] Adjudicator Muir dismissed the 2014 termination complaint alleging discrimination on the basis of race pursuant to s. 45(1) of the Code. That section provides the Tribunal with authority to dismiss an application in whole or in part if it is of the opinion that another proceeding has appropriately dealt with the substance of the application. That section is drafted to avoid a duplication of proceedings before various administrative tribunals.
[31] Duplicated proceedings are to be avoided because can often result in conflicting outcomes. For this reason the legislature has granted a number of administrative authorities (including both arbitrators and The Ontario Human Rights Tribunal) the jurisdiction and responsibility to enforce the substantial rights and obligations enshrined in the Code.
[32] Adjudicator Muir reasonably concluded on the evidence before him that issues arising out of the termination of the Applicant with the Employer alleging discrimination of the basis of race had been appropriately dealt with pursuant to the Stenberg arbitration award dated as envisioned in s. 45.1 which provides:
45.1 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.
[33] The Tribunal has held that grievance arbitrations and settlement of claims brought under another statutory regime (such as the Labour Relations Act) constitute “proceedings” within the meaning of s. 45.1. In cases such as Dunn v Sault Ste. Marie, 2008 HRTO 149, (paras. 37-38) established the authority and responsibility of labour arbitrators to hear and determine matters relating to the substantive rights and obligations of parties pursuant to the Code.
[34] The grievance provided settlement and order of Arbitrator Steinberg provided for final resolution with respect to the issue of discipline arising out of an allegation of an unfair termination.
[35] The reasonableness of that decision was reinforced by the subsequent dismissal of the Unfair Representation claim of the Applicant by the Ontario Labour Relations Act. That is, the OLRB determined that the settlement reached with respect to the grievance of the Applicant dealt with the issues of termination fully.
3/ The 2015 allegations of unfair management of performance, unfair denial of training opportunities and unfair lay off.
[36] Adjudicator Muir concluded that on the facts alleged by the Applicant, he could not reasonably succeed in establishing that he was discriminated against on the basis of race.
[37] This conclusion was reached pursuant to a reasonable interpretation of the allegations and in accordance with previous decisions of the Tribunal. Specifically, Adjudicator Muir found as follows:
i) The Applicant did not receive additional training because he was already sufficiently trained and had demonstrated the ability to do the required work.
ii) The Applicant was one of a number of employees to be laid off. His complaint makes no facts to support the assertion that this was racially motivated, other than a statement of his own race. His claim was based solely on a belief without any underlying facts to support this assertion.
4. The Request for Reconsideration
[38] For these reasons I find that the adjudicator did not ignore or misinterpret the word “appropriately” in his s.45.1 analysis as is suggested by the Applicant.
[39] On March 15, 2017 the Applicant made a Request for Reconsideration of the decision of Adjudicator Muir dated February 15, 2017 pursuant to r. 26.5. That rule prescribes the grounds for granting an application for reconsideration. Specifically, the Applicant submits that Rules 26(a) and (d) apply.
[40] Rule 26(a) and (d) provide that reconsideration will only be granted where one or more conditions are satisfied, as follows:
a) There are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier;
or
d) other factors exist that, on the opinion of the Tribunal, outweigh the public interest in the finality of the Tribunal decisions.
[41] On a review of the Reconsideration Decision it is clear that the adjudicator considered all of the evidence and concluded that the Applicant had not provided any new facts or evidence previously unobtainable that could potentially be determinative of the case, or that outweighed the public interest in having the matter finalized.
[42] This analysis was logical and reasonable.
C. Was there Procedural Unfairness?
[43] I observed nothing on the Record that gives rise to a claim of procedural unfairness. The applicant has not articulated why the procedure was unfair. From my review of both the decision and reconsideration there is no basis to suggest the procedures followed were unfair.
[44] The hearing and reconsideration hearing before Adjudicator Muir were conducted fairly. The Applicant was provided and utilized a translator who explained the process to the Applicant at all steps. There is no evidence before this Court that suggests Applicant was in any way denied the right to fully present his case before Adjudicator Muir.
D. Does s. 15 of The Charter Apply?
[38] S. 15(1) of the Charter provides as follows:
- (1) Every Individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
[39] Not only does s. 15.1 not apply, it was not raised in the application material filled by the Applicant. As has been recognized law since 1986, the Charter does not apply to private interactions between individuals or private businesses: see Dolphin Delivery Ltd. v. R.W.D.S.V., Local 580, 1986 5 (SCC), [1986] 2 S.C.R. 573 S.C.C. at paras. 40 and 42. That is, while the respondent employer has a duty to comply with statutes that regulate workplace interactions, such as the Ontario Human Rights Code, employers (or other private parties) are not required to provide the protections granted to all Canadians pursuant to the Charter.
CONCLUSION
[45] The submissions of the Applicant today amounted to an attempt to re-argue the merits of his Human Rights complaint before this panel. An Application for judicial review is unequivocally not a re-hearing of the matters previously heard before administrative tribunals established by the legislature to hear and determine matters that fall within their statutory purview. The role and jurisdiction of the Divisional Court is to provide judicial oversight to the decisions of tribunals with respect to issues such as jurisdiction and reasonableness.
[46] An application for judicial review is not a de novo proceeding.
[47] While the Applicant may not be satisfied with the ultimate outcome of the Steinberg arbitration award, it is clear that the proceedings before Adjudicator Muir were conducted fairly and meet the test of reasonableness.
[48] Accordingly, the application is dismissed.
Horkins J
[1] I have endorsed the Appeal Book and Compendium as follows: “The application for judicial review is dismissed. Oral reasons delivered today. The applicant shall pay the respondent Graham Packaging its costs of this application fixed at $5000.00. The Human Rights Tribunal seeks no costs.
King J.
I agree
C. Horkins J.
I agree
Fitzpatrick J.
Date of Reasons for Judgment: June 25, 2018
Released: June 28, 2018
CITATION: Zhang v. Human Rights Tribunal, 2018 ONSC 3987
DIVISIONAL COURT FILE NO.: DC 16-1031JR
DATE: 20180625
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Horkins, Fitzpatrick, King JJ
BETWEEN:
Mengkai Zhang
Applicant
-AND-
Human Rights Tribunal of Ontario, Graham Packaging Canada Company, United Steel Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union (United Steelworkers), Local 243G
Respondents
ORAL REASONS FOR JUDGMENT
King J
Date of Reasons for Judgment: June 25, 2018
Released: June 28, 2018
[^1]: HRTO Record of Proceedings, at 269.