Ontario Labour Relations Board
0468-81-U Dr. Bidhu B. P. Sinha, Complainant, v. Fanshawe College of Applied Arts and Technology, Respondent, v. Ontario Public Service Employees Union, Intervener.
BEFORE: Ian Springate, Vice-Chairman, and Board Members O. Hudges and J. Wilson.
APPEARANCES: Dr. Bidhu B. P. Sinha for the complainant; W. J. Hayter, H. W. Collard
and P. T. Myers for the respondent; Richard Nabi for the intervener.
DECISION OF THE BOARD; September 11, 1981
This is a complaint under section 78 of The Colleges Collective Bargaining Act, 1975, alleging that Dr. B. Sinha has been dealt with by Fanshawe College of Applied Arts and Technology (the "College") contrary to several provisions of the Act. Initially, the complaint alleged violations of sections 52(1), 66 and 76(2) of the Act. At the hearing the Board permitted Dr. Sinha to also allege that the college had violated sections 76(3) and 81(1). During the hearing into this matter Dr. Sinha was given an opportunity to put forward all of the facts upon which he intended to rely in support of his complaint. At the conclusion of the hearing the Board orally dismissed the complaint and gave brief reasons for doing so. What follows are more extensive reasons for the Board's ruling.
Dr. Sinha commenced to teach for the college on a full-time basis in the fall of 1978. In this position he was covered by a collective agreement binding on the college entered into between the Ontario Council of Regents for Colleges of Applied Arts and Technology and the intervener trade union ("OPSEU"). On March 28, 1979, Dr. Sinha, who was still a probationary employee under the collective agreement, was advised that his employment with the college would be terminated effective June 30, 1979, and that he was being released from all 4uties as of April 30, 1979. The position of the college is that the decision to terminate Dr. Sinha was based solely on factors relevant to his performance as a teacher. On April 22, 1980, OPSEU filed a complaint on behalf of Dr. Sinha under section 78 of the Act (File No. 0139-80-U) alleging as follows:
"On or about March 28, 1979 the grievor was dealt with by J. A. Colvin, President of Fanshawe College and W. Collard, Chairman of the Mathematics and Science Division of the respondent contrary to the provisions of section 76, of the Colleges Collective Bargaining Act in that they did on their own behalf or on behalf of the respondent terminate the employment of Dr. Sinha in response to Dr. Sinha initiating action under the Grievance Procedure of the Collective Agreement. Dr. Sinha was objecting to a memo of March 8, 1979 from W. Collard."
The complaint further requested that the Board order the reinstatement of Dr. Sinha with compensation.
A hearing was held into the merits of this earlier complaint before a differently constituted panel of the Board. On January 20, 1981, the Board issued a decision in which it concluded that Dr. Sinha's action in pursuing his rights under the collective agreement had not been a factor in his termination, and accordingly it dismissed the complaint.
The instant complaint was filed on May 23, 1981. Like its predecessor, the present complaint alleges that Dr. Sinha's termination was contrary to The Colleges Collective Bargaining Act, 1975, although this time it relies on a number of different provisions of the Act. As already noted, the Board permitted Dr. Sinha at the hearing to widen the scope of his complaint against the college. Dr. Sinha also sought at the hearing to amend his complaint to allege a violation of sections 52(1), 76(3), 77 and 81(2) of the Act on the part of OPSEU and to request an order of compensation against the union. Dr. Sinha indicated that if such was necessary, he was willing to have the Board add OPSEU as a respondent to the complaint. The representative of OPSEU objected strenuously to having to deal on such short notice with any allegations that the union violated the Act. In the interests of basic fairness to OPS EU, the Board ruled that it would not allow the complaint to be amended to alleged a violation of the Act on the part of OPSEU or to seek compensation from OPSEU.
It was the contention of counsel for the college that the subject matter of the instant complaint is res judicata in that it had been dealt with in the earlier proceedings. The position of the college is that the reasons for Dr. Sinha's termination were fully canvassed in the earlier proceedings and that it would be improper to require the college to relitigate the issue simply because Dr. Sinha now desires to put before the Board additional facts and submissions which could have been presented in the earlier proceedings. The Board's practice is, in the appropriate case, to apply a doctrice analogous to res judicata to prevent the relitigation of issues. The Board discussed the principles involved in the following excerpt from the Arnold Markets Limited case 62 CLLC 9116,221:
"This case again raises the question as to the evidentiary effect of a previous decision of the Board when relied on as proof of matters in issue in another proceeding before it. The common law courts deal with this question under the rules of res judicata or estoppel. These rules, of course, are designed to bar relitigation of adjudicated issues on the basis that as a matter of public policy there should be an end to litigation and that a party should not be twice vexed for the same cause or again required to prove a matter already adjudicated in his favour. The general rule at common law is that an existing final judgment rendered upon the merits by a court of competent jurisdiction is binding upon and conclusive evidence for or against the parties and their privies in any subsequent actions involving any matters actually decided and which might have been litigated in respect of those matters in the first action. (See the authorities referred to in Wright Assemblies Limited, Board file 9661-61-U and Phipson on Evidence, 9th ed. pp. 427-444). The conclusiveness of the judgment includes not only the findings but also the grounds of the decision where these can be clearly discovered from the judgment itself (see Phipson, ibid., p. 427).
It seems obvious that as a general rule, once a fact or question has been put in issue and directly adjudicated upon in the proceeding before the Board, such adjudication should constitute a final determination of the matter between the same parties and conclusive evidence for or against them in any other proceeding before the Board which involves the same question or fact. It is our opinion that the Board ought, as a general rule, to apply a principle analogous to that of res judicata or estoppel with the result that it must accept an existing decision made by it on the merits as conclusive evidence for or against the parties or their privies in any subsequent proceeding brought before it by the same parties and involving the same questions or facts decided by it in the first decision (see Halsbury's Laws of England, 3rd ed. vol. 15, pp. 212, 213)."
Dr. Sinha contended that the subject matter of the instant complaint is not res judicata in that whereas OPSEU had been the complainant in the earlier proceedings here he was bringing the complaint on his own behalf. Dr. Sinha acknowledged that he had asked OPSEU to bring the earlier complaint on his behalf and that he had testified in support of the complaint at the hearing but, he contended, during the hearing the union had acted in collusion with the college. In our view, the fact that Dr. Sinha is bringing this complaint on his own behalf does not take the matter out of the principle of res judicata. As noted in the above excerpt from the Arnold Markets case, res judicata applies to bind both the parties to an earlier proceeding as well as their privies. Dr. Sinha was clearly privy to OPSEU in the original complaint, and indeed OPSEU filed the complaint for the benefit, and at the request of, Dr. Sinha. Further, whatever recourse Dr. Sinha may have against OPSEU, his dissatisfaction with the conduct of the earlier proceedings is not, in itself, sufficient to require the college to defend itself against the same or related allegations a second time around.
Dr. Sinha also contended that res judicata does not apply in this case because the Board in the earlier proceedings had concentrated on the issue of whether a memo written by Dr. Sinha on March 15, 1979 had triggered his discharge and the Board did not deal with certain other matters relating to his discharge and treatment by the college. Dr. Sinha further indicated that he now desired to bring forth evidence relating to a longer time period than that which had been raised during the earlier proceedings. We are satisfied, however, that it is not now open to Dr. Sinha to raise matters which were or reasonably could have been, advanced in the earlier proceedings. In this regard we would refer to the following statements of Wigram V.C. in Henderson v. Henderson 67 E.R. 313:
Where a given matter becomes the subject of litigation, and of adjudication by a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matters which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special case, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of the litigation and which the parties, exercising diligence, might have brought forward at the time."
Having regard to our reasoning set out above we are satisfied that the Board should apply a principle analogous to that of res judicata and not permit Dr. Sinha to relitigate the issue of whether his discharge was in violation of section 76(2) of the Act. At the hearing Dr. Sinha amended his complaint to also allege a violation of section 73(3) of the Act. This section prohibits the use of intimidation or coercion to compel a person from exercising rights under the Act. In his submissions Dr. Sinha did not expressly indicate how he felt the college had violated this section. However, it is clear that this section could have been pleaded in the earlier proceedings and accordingly it cannot now be raised by way of a fresh complaint.
In his current complaint Dr. Sinha contends that the college violated section 8 1(1) of the Act, a contention not raised in the earlier proceedings. Section 81(1) provides inter alia, that a college shall not refuse to continue to employ or discriminate against a person because of a belief that that person may testify in a proceeding under the Act. Dr. Sinha took the position that his discharge was motivated in part by a concern on the part of certain officials of the college that at some point in the future he might file a complaint and testify against the college. In our view, this type of allegation could have been raised in the earlier proceedings when the Board dealt with the issue of whether Dr. Sinha's discharge had been contrary to the Act, and accordingly are satisfied that the Board should not now deal with this allegation.
The instant complaint also alleges that the college violated section 66 of the Act. Section 66 declares that every person is free to join an employee organization of his own choice and to participate in its lawful activities. This section is essentially a declaration of rights and does not create an offense. Effect is given to this declaration by the specific prohibitions and offenses contained in other sections of the Act. It follows that the college could not have violated section 66. In this regard see: Mrs. Deborah Brown, Mr. Stephen Lewis, [1976] OLRB Rep. Feb. 4.
The instant complaint alleges that the college violated section 52(1) of the Act, an allegation also not contained in the earlier proceedings. Section 52(1) provides inter alia that a collective agreement is binding on a college. It was Dr. Sinha's contention that on the basis of this section the Board can deal with any alleged breach of the collective agreement in much the same way as can a board of arbitration. Because of this, contended Dr. Sinha, the Board can deal with his discharge insofar as it may have been in violation of the collective agreement, notwithstanding the fact that article 9.06 of the agreement provides that the dismissal of a probationary employee, such as Dr. Sinha, shall not be the subject matter of a grievance.
Unlike Dr. Sinha, we do not interpret section 52(1) as giving the Board the power to hear all issues involving the alleged violation of a collective agreement. Section 47 of the Act makes it clear that alleged violations of a collective agreement are matters to be dealt with at arbitration. If the legislature intended this Board to act as an arbitration board in matters relating to community colleges, it would have expressly given it the authority to do so, as indeed it did under section 1 12a of The Labour Relations Act with respect to grievances arising out of the construction industry.
We would note at this point that the primary issue Dr. Sinha sought to have the Board determine under the collective agreement was whether or not his discharge had been in violation of article 24.01 which provides that in accordance with the provisions of The Ontario Human Rights Code, no employee shall be discriminated against by reason of race, creed, colour, age, sex, marital status, nationality, ancestry or place or origin. We would note in this regard that if Dr. Sinha feels that he had been discriminated against contrary to the terms of The Ontario Human Rights Code he can make a complaint to the tribunal specifically established under the Code to deal with such matters, namely The Ontario Human Rights Commission.
It was for the reasons set out above that the Board orally dismissed this complaint at the hearing.