Vince de Paepe v. Hydra-Dyne Industrial Cleaning, 1995 CanLII 10036

[1995] OLRB Rep. December 1442

4246-94-EP Vince de Paepe, Applicant v. Hydra-Dyne Industrial Cleaning, Responding Party

BEFORE: Pamela Chapman, Vice-Chair, and Board Members R. W. Pirrie and P. R. Seville.

DECISION OF THE BOARD; December 5, 1995

1. This is an application pursuant to section 174 of the Environmental Protection Act ("the EPA"), alleging a violation of that section by the responding party ("the employer").

2. By way of response, the employer submits that the application should not be considered by the Board, as the facts relating to the complaint of the applicant ("de Paepe") have previously formed the subject matter of an arbitration between the employer and the bargaining agent which represents De Paepe, the International Brotherhood of Boilermakers, Ironship Builders, Blacksmiths, Forgers and Helpers, Local 128 ("the union"). In addition, the employer notes that the applicant's complaints to the Ministry of the Environment have been resolved.

3. The employer's request was forwarded to the applicant for his comments, and we have reviewed his submissions, together with the request of the employer, and the numerous documents filed by each party, in reaching our decision in this matter.

4. Having carefully considered the submissions of the parties, and in the circumstances of this case, we have concluded that we ought to exercise our discretion pursuant to sections 174(4)(b) and (6) of the EPA not to inquire into the complaint. Our reasons for this determination follow.

THE FACTS

5. The applicant claims that he was disciplined by the employer because he intended to comply with, to seek enforcement of, or to give information concerning, the EPA.

6. In assessing whether or not to inquire into this complaint, we have assumed that the facts as alleged by de Paepe are true and provable.

7. De Paepe claims, and it appears from the documents filed by the employer that it is not disputed, that on March 10, 1994, he approached members of management at the workplace to, in his words, "discuss work related issues.. .(including) improper dispatching and various wrong doings being committed at the workplace". It is also not disputed that de Paepe and a supervisor then became embroiled in a verbal and physical altercation, in front of several other management personnel and at least one other bargaining unit employee.

8. What is disputed is who started the altercation, and who engaged in the physical aspects of the fight: de Paepe claims that he was assaulted by the supervisor, and indeed he filed an assault charge after contacting the police.

9. De Paepe claims that during the altercation he raised with the members of management present several concerns relating to the employer's compliance with the EPA, including an alleged diesel fuel spill, a hydraulic line which allegedly blew over a storm sewer, and the alleged deliberate dumping of spent oil in the back of the shop..

10. Following the altercation, de Paepe was suspended for three days. He was also warned by the employer that he would be disciplined further, up to and including dismissal, if any similar incidents occurred in the future.

11. De Paepe filed a grievance over the suspension, and it was processed to arbitration by the union. The arbitration hearing was held on August 18, 1994, and the arbitrator dismissed the grievance by a decision dated September 13, 1994.

12. The applicant also attended at the local office of the Ministry of the Environment ("the MOE") and filed a complaint alleging nine violations of the EPA by his employer, on March 24, 1994. These complaints resulted in an investigation by the MOE on April 27, 1994, and a report dated May 2, 1994, which found substantial compliance with the EPA. Since the release of that report, de Paepe has continued to pursue his complaints against the employer, filing an objection to the report, complaining to his local M.P.P., and meeting on several occasions with other officials of the MOE.

13. Prior to filing this complaint, de Paepe explored the possibility of filing a complaint pursuant to section 174 of the EPA with his union, and with a lawyer. On May 9, 1994, he spoke to his union representative about the possibility of the union filing a complaint on his behalf. After consulting with their lawyers and receiving an opinion, a copy of which was provided to the Board by the applicant, the union declined to file a separate complaint to the Board under section 174, and instead decided to pursue the applicant's claim that the discipline was a reprisal for his actions under the EPA as part of the arbitration proceeding.

14. The trial on the assault charges filed by de Paepe against the supervisor was scheduled to proceed on March 28, 1995. This hearing was delayed further to June 22, 1995. At the trial, the supervisor was acquitted of the charges.

15. De Paepe filed this complaint to the Board on February 27, 1995.

THE LAW

16. Section 174 of the EPA provides as follows:

174.- (1) In this section, "Board" means the Ontario Labour Relations Board. ("commission")

(2) No employer shall,

(a) dismiss an employee;

(b) discipline an employee;

(c) penalize an employee; or

(d) coerce or intimidate or attempt to coerce or intimidate an employee,

because the employee has complied or may comply with,

(e) the Environmental Assessment Act;

(f) the Environmental Protection Act;

(g) the Fisheries Act (Canada);

(h) the Ontario Water Resources Act; or

(i) the Pesticides Act;

or a regulation under one of those Acts or an order, term or condition, certificate of approval, licence, permit or direction under one of those Acts or because the employee has sought or may seek the enforcement of one of those Acts or a regulation under one of those Acts or has given or may give information to the Ministry or a provincial officer or has been or may be called upon to testify in a proceeding related to one of those Acts or a regulation under one of those Act.

(3) A person complaining of a contravention of subsection (2) may file the complaint in writing with the Board.

(4) Where a complaint is filed in writing with the Board,

(a) the Board may authorize a labour relations officer to inquire into the complaint; or

(b) the Board may inquire into the complaint.

(5) A labour relations officer who is authorized to inquire into the complaint shall make an inquiry forthwith and shall endeavour to effect a settlement of the matter complained of and shall report the results of the inquiry and endeavours to the Board.

(6) Where the labour relations officer is unable to effect a settlement of the matter complained of, the Board may inquire into the complaint.

(7) Where the Board inquires into the complaint and is satisfied that an employer has contravened subsection (2), the Board shall determine what, if anything, the employer shall do or refrain from doing with respect thereto.

(8) A determination under subsection (7) may include, but is not limited to, one or more of,

(a) an order directing the employer to cease doing the act or acts complained of;

(b) an order directing the employer to rectify the act or acts complained of; or

(c) an order directing the employer to reinstate in employment the complainant, with or without compensation, or to compensate in lieu of hiring or reinstatement for loss of earnings or other employment benefits in an amount that may be assessed by the Board against the employer.

(9) A determination by the Board under subsection (7) applies despite a provision of an agreement.

(10) On an inquiry under this section, the burden of proof that an employer did not contravene subsection (2) lies upon the employer.

(11) Where there is a failure to comply with a term of the determination made under subsection (7), the complainant, after the expiration of fourteen days from the date of the release of the determination by the Board or from the date provided in the determination for compliance, whichever is later, may notify the Board in writing of the failure.

(12) Where the Board receives notice in accordance with subsection (11), the Board shall file in the office of the local registrar of the Ontario Court (General Division) a copy of the determination, exclusive of the reasons therefor, if any, and the determination shall be entered in the same way as a judgment or order of the court and is enforceable as such.

(13) Where the matter complained of has been settled, whether through the endeavours of the labour relations officer or otherwise, and the terms of the settlement have been put in writing and signed, the settlement is binding and shall be complied with according to its terms, and a complaint that a settlement has not been complied with shall be deemed to be a complaint under subsection (3).

(14) The Labour Relations Act and the regulations under that Act apply with necessary modifications in respect of a proceeding under subsections (2) to (13).

(15) For the purposes of subsections (2) to (14), an act mentioned in subsection (2) that is performed on behalf of an employer shall be deemed to be the act of the employer.

17. As is clear from sections 174(4)(b) and 174(6), the Board has a discretion as to whether or not it inquires into a complaint made under section 174(3).

18. While the Board has not previously considered in reported decisions the exercise of our discretion under these sections, the phrase "may inquire" is also used in section 91 of the Ontario Labour Relations Act ("the Act"), which has been the subject of numerous Board decisions.

19. The Board has commented recently on the considerations relevant to the exercise of that discretion, in Service Employees International Union Local 204, (unreported decision dated January 16, 1995, Board File No. 3431-94-U):

….It is important for the Board to expend these limited resources in a way that is consistent with the objectives of the statute, will best accomplish its statutory mandate, and is sensitive to practical labour relations realities. Accordingly, in exercising its discretion under section 91(1) the Board may wish to consider: whether the complaint makes out a arguable case for a breach of some section of the Act; the chance of success; the nature and utility of any remedy that might flow; the cost implications for the parties and the public; and whether, overall, some statutory or labour relations purpose would be served by the litigation exercise.

20. We can see no reason why similar considerations ought not to be relevant to the decision as to whether or not to inquire into a complaint under section 174 of the EPA, keeping in mind of course the different statutory purpose served by that legislation.

21. The Board has also expressed concerns in numerous decisions about the filing of complaints to the Board after a matter has been adjudicated in another forum. This situation has most often occurred with respect to complaints under section 50 (previously section 24) of the Occupational Health and Safety Act ("the OHSA"). The following quote from H. H. Robertson Inc., [1991] OLRB Rep. April 492, at paragraphs 77 to 79, summarizes the Board's view of the problem:

22. Since 1979, the Board has not been inundated by complaints from wily workers asserting safety concerns in order to obtain an inexpensive review of their employer's actions. What the Board has encountered is the unsuccessful litigant who seeks to recast his complaint as a '~statutory" issue in order to obtain another hearing on a matter which has already been the subject of arbitral review under a collective agreement. For example, in Great Atlantic & Pacific Company of Canada Limited, [1987] OLRB Rep. May 714, an employee grieved his discharge under a collective agreement, settled that grievance by accepting reinstatement without compensation then, two months later, filed a section 24 complaint to collect the lost wages. The Board said this:

23. When a worker feels that he or she has been affected by a contravention under section 24(1) of the O.H.S.A., subsection (2) requires the worker at some point to make an election of the forum in which he or she will seek a remedy. At some point, a worker must choose either to proceed before the Board or to proceed under the arbitration provisions of the relevant collective agreement. See, The Municipality of Metropolitan Toronto, [1986] OLRB Rep. Feb. 283, and the cases cited therein. It is not necessary for us to define with precision at what point the worker must make an election. But having elected one forum and having obtained a determination of the issue in that forum, a worker cannot then attempt to obtain a remedy in the other forum. Implicit in section 24(2) and the choice of procedures set out therein is the recognition of the undesirability of having the same issue litigated in two quite separate forums. We agree with the comments of the Board in The Municipality of Metropolitan Toronto, supra, at paragraph 10, where the Board stated that the O.H.S.A. issue raised by a grievance is not severable in the sense that one can take the just cause aspect of a discharge to arbitration and the O.H.S.A. aspect to the Board. The issue of whether the discipline was proper is one issue and with respect to that issue a worker must at some point choose in which of the two forums he or she will seek a remedy.

24. In the circumstances before us, Cullen elected to seek a remedy for his discharge by utilizing the grievance and arbitration provisions of the collective agreement between the union and the employer. Cullen's discharge grievance was settled by the union and employer with Cullen's consent. Not only did Cullen seek a remedy under the collective agreement, but a resolution of the discharge grievance was achieved which was acceptable to Cullen. In filing his O.H.S.A. complaint approximately two months after his discharge was settled, Cullen is, in effect, attempting to raise the same issue, namely the propriety of his discharge, before this Board, after agreeing to a resolution of the discharge within the process of the other available forum. The Board finds that this is an appropriate situation in which to exercise its discretion in favour of not inquiring into Cullen's complaint in Board File No. 2785-86-OH.

Similarly, in Zalev Brothers Limited, [1989] OLRB Rep. July 810, the Board said:

15. Counsel for the complainant asserted that '~the matter" referred to in section 24(2) of the OHSA was only the "OHSA" issue while the Hinnegan award solely dealt with the "illegal strike" aspect. With respect, that approach was rejected in the Municipality of Metropolitan Toronto, supra, at paragraph 10, in an analysis with which this Board agrees. The "matter" is the consequence for the worker imposed by the employer (as set out in sections 24(l)(a) to (d)), not the reason for the consequence. It is the reason for the consequence which is the subject of the adjudication whether before the Board or at arbitration. If the reason is determined to be "because the worker has acted in compliance with this Act or the regulations or an order made thereunder or has sought the enforcement of this Act or the regulations", the consequence is prohibited by the OHSA. Whether before the Board or at arbitration, the employer must articulate its "reason" for imposing the "consequence" on the worker and that reason is subject to the appropriate scrutiny.

Both cases referred to these comments in Municipality of Metropolitan Toronto, [1986] OLRB Rep. Feb. 283:

……The "matter" referred to in section 24(2) is the alleged violation of 24(1), namely, that an employer acted to penalize a worker, as set out in sub (a) to sub (d), because the worker complied with or sought enforcement of the OHSA. That issue of improper (or unjust) discipline is the "matter" to be heard at arbitration or before the Board. While the respondent asserts that the undisputed fact that the complainant is no longer an active employee is as a result of layoff, there is no doubt that section 24(1) of the OHSA is integral to the grievance should the grievance be adjudicated in an arbitral forum. The grievance form itself refers to "termination without just cause" rather than improper layoff or some such language. Section 24(1) affords workers a right of protection from penalties for invoking the OHSA; that right is enforceable under the legislation either at arbitration or before the Board.

(See also: Scarborough General Hospital, [1988] OLRB Rep. Sept. 981; and compare Everette Chapelle, [1990] OLRB Rep. Dec. 1238.)

78. None of these cases is precisely on point, but they all support the suggestion that once a worker obtains an adjudication of the propriety of discipline, whether before the arbitrator or the Board, s/he cannot litigate the matter again. The Board has not accepted the proposition that the "contractual" aspects of the discharge (etc.) are severable and properly the province of the arbitrator, while the "statutory" aspects are the province of the Board. What is before the adjudicator in both cases is the discharge, and an aggrieved worker is expected to raise all of his/her legal challenges to that penalty in whatever forum s/he chooses. In this regard we are attracted to the view adopted by the Court of Appeal in Bernier v. Bernier (1989) 1989 CanLII 4112 (ON CA), 62 D.L.R. (4th) 561:

The doctrine of res judicata was stated thus by Sir James Wigram V-C. in Henderson v. Henderson (1843), 3 Hare 100 at pp. 114-5, 67 ER. 313 (Ch.):

In trying this question I believe I state the rule of the Court correctly when I say that, where a given matter becomes the subject of litigation in, 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 matter 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 cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgement, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.

While these comments are obviously made in a different legal context, they embody sensible institutional concerns which we think should inform our interpretation of section 24(2) and 24(7). Thus, in Amalgamated Transit Union Local 113 and Chapelle, supra, the Board held that an unsuccessful section 24 complainant could not seek to arbitrate the "just cause" of his termination because that matter had already been dealt with or should have been dealt with under section 24(7). A complaint under 24(1) puts in issue general equitable considerations under 24(7), including any effect (in an organized context) of the "just cause clause" in a collective agreement. Once the Board has addressed 24(7) and refused to exercise its discretion, there is no "just cause" issue left to be determined.

79. In our view, when a worker elects to go to arbitration under section 24(2) he has his whole case considered by that arbitrator. He cannot later come to the Ontario Labour Relations Board to pursue the alleged "safety aspect" or assert some anti-safety motive which he neglected to raise or which the arbitrator may not have considered or may have rejected. He cannot claim that the arbitrator is only interpreting the agreement, leaving the statutory breach as a reserve argument to be pursued before the Board. Similarly, if a worker puts his case to the Board under section 24(2), the Board will finally resolve the matter including any application of section 24(7). There is no "contractual part" left over to be pursued at arbitration because, if relevant at all, the contractual part is a "circumstance" which could be and should be raised under 24(7). In our opinion, the OHSA contemplates not only an of election under section 24(2) but one adjudication of the adverse employment consequence of which the aggrieved worker complains. To put the matter colloquially: the Board or an arbitrator will deal "with the whole ball of wax".

80. The complaint provisions under section 50 (then section 24) of the OHSA differ of course from section 174 of the EPA, as they include a provision, section 50(2), which specifically provides a worker with an election as to whether to pursue a reprisal complaint at arbitration or before the Board:

50.-(2) Where a worker complains that an employer or person acting on behalf of an employer has contravened subsection (1), the worker may either have the matter dealt with by final and binding settlement by arbitration under a collective agreement, if any, or file a complaint with the Ontario Labour Relations Board in which case any regulations governing the practice and procedure of the Board apply with all necessary modifications to the complaint.

23. Even in the absence of such language, however, there are, as the Board said in H.H. Robertson Inc., supra, at paragraph 78 quoted above, "sensible institutional concerns" which mitigate against permitting a party to pursue in one forum issues which have already been litigated in another. For these reasons, the Board has applied the doctrine of res judicata or issue estoppel not only where the Board itself has already adjudicated on the merits of a case involving the same issue and the same parties, but also where an issue has been decided by another tribunal with concurrent or overlapping jurisdiction.

DECISION

24. The first factor considered by the Board in determining not to inquire into the instant complaint, and the major factor raised by the employer, is the arbitration previously held concerning the three-day suspension imposed on de Paepe.

25. It seems clear from a reading of the award of arbitrator Lorne E. Dunkley that the issue of the suspension being an alleged reprisal against de Paepe for having raised concerns relating to the EPA was raised by the union at the hearing, and was considered by the arbitrator.

26. In reviewing the parties' positions on page 1 of the award, the arbitrator notes that it was the union's position that de Paepe was "at least in part, suspended because he asserted that he would "blow the whistle" on the employer, by reporting certain practices of the employer to the Ministry of the Environment". In addition, he notes in reciting the facts that the grievor made certain accusations against management during the altercation, including allegations of acts which would violate the EPA, as well as complaints about dispatching. According to both the employer's and the employee's versions of the facts, de Paepe also threatened to report the employer to the MOE.

27. The award records that in arguing the case, the union took the position that there was no just cause for a suspension, and also that the employer's actions were tainted by the grievor threatening to call the MOE. The union took the position that the environmental allegations made by de Paepe "sparked" the discipline, and asserted that the arbitrator had the jurisdiction, pursuant to section 45(8)(3) of the Act, to interpret and apply section 174(2) of the EPA to determine that in these circumstances discipline was prohibited. The union also filed cases in support of their argument that the disciplining of the grievor was at least in part due to his threat to involve the MOE.

28. While the arbitrator did not specifically rule on whether or not he had the jurisdiction, pursuant to section 45(8)(3) of the Act, or otherwise, to apply the EPA, he appears nonetheless to have made findings in that regard. Immediately after reviewing the arguments of the parties on this point, he states "the simple fact of the matter is that there was no evidence that the action was retaliatory". He goes on to review the versions of the altercation offered by the witnesses, and decides to accept the testimony of several supervisors concerning the incident. On this basis, he concludes that de Paepe was insubordinate, and that, given two earlier disciplinary warnings for insubordination, on the two days prior to the altercation, neither of which were grieved, a three-day suspension was an appropriate response to this conduct.

29. De Paepe now asks the Board to find that the discipline imposed by the employer on March 10, 1994 was a reprisal for his stated intent to comply with the EPA, despite the arbitrator's prior finding that it was not. In these circumstances, all of the problems which have led to the development of the doctrine of res judicata are potentially present, including the possibility of inconsistent factual findings, duplication of proceedings, uncertainty, and obviously significant costs for the parties.

30. This is not to say that the arbitrator's prior ruling prohibits the Board from inquiring into de Paepe's complaint, but it provides a significant reason for our declining to do so. This is a case much like those cited in the H.H. Robertson Inc. decision, where a party seeks to have an issue resolved in one forum, and then, unhappy with the decision there, brings it to another. In defending his complaint to the Board, de Paepe states that he was unhappy with the union's presentation of his case at arbitration, and that not all of the evidence which might have supported his version of events was presented, including the testimony of a bargaining unit witness and the disclosure of a tape recording he made of the event. It appears, however, that this evidence was not presented due to de Paepe's desire that his case on the assault charges not be revealed to the employer's counsel prior to his court date. In these circumstances, where de Paepe had an opportunity to present evidence but chose not to, it is not appropriate for him to seek a second hearing of his case before the Board. It is also not clear from the submissions made by de Paepe that the additional evidence would in any event cast any different light on the question of the employer's motivation for the discipline.

31. A second factor relating to our decision not to inquire into the complaint filed by de Paepe is the nature and utility of the remedy sought by him, and the likelihood that it would be granted by the Board. In his complaint, de Paepe asks the Board to "investigate my complaint and act upon it, to use the EPA under section 174 and intervene upon my behalf and invoke the Act to prevent this supervisor from contravening upon someone else". It is not clear, therefore, what specific remedy he is seeking, either from this statement of what he is requesting or elsewhere in the complaint, although he does later mention the need for supervisors at the workplace to be provided with training concerning the EPA.

32. Presuming that a violation of the EPA was established in this case, it appears to the Board that the most likely remedy would be reversal, or at least a reduction, of the suspension imposed upon de Paepe. It is appropriate, therefore, to take into account in deciding whether or not to inquire into the complaint that the discipline he received does not have a permanent effect on his ability to pursue his livelihood, in the way that a dismissal or demotion, for example, would do. It is also relevant to consider that, even on de Paepe's version of the facts, he engaged in conduct which was insubordinate, quite apart from his accusations concerning the EPA, and that in these circumstances, some discipline might well have been appropriate. Finally, it would of course be relevant in assessing the specific discipline which was imposed by the employer to consider the fact that de Paepe had been given disciplinary warnings for insubordinate conduct on the two days prior to the altercation, which discipline was not grieved. All of these factors give us some concerns about the nature and utility of the remedy which might be provided by the Board were the complaint to be successful.

33. Finally, we have considered the delay in pursuing this complaint to the Board in determining not to inquire into it. The complaint was not filed until almost a year after the events complained of occurred, and more than five months after the release of the arbitrator's decision. The delay to February 1995 is particularly troubling given the letter from union counsel provided to the grievor on May 20, 1994, after he asked the union local to consider assisting him with a complaint under section 174. In that letter, union counsel advises the local that it is not necessary to provide representation to de Paepe on an EPA complaint, but concludes with the statement that "I would simply encourage Mr. de Paepe to bring his complaint on his own behalf as soon as possible if he still wishes to do so" (emphasis added).

34. The explanation for the delay provided by de Paepe in his complaint to the Board is essentially that he felt, based in part on advice from a lawyer, that he would be able to resolve this matter at the arbitration hearing or through the criminal trial. When his grievance was lost, and the trial was delayed, he apparently decided to file a complaint to the Board.

35. This explanation is not an adequate one, as it fails to counter, and indeed only confirms, the main prejudice arising from delay of this sort, which is the belief of the other party or parties that the matter has been resolved or at least is not being pursued. The employer had every reason to believe, given that this matter was raised by the union and ruled upon by the arbitrator, that the issue relating to its motivation in imposing discipline, and the challenge to the discipline, was no longer being pursued by de Paepe. His pursuit of the assault charges would have had no impact on that presumption, as the charges relate only to one of the individuals involved, and could not in any event impact on the discipline.

36. For all of these reasons, therefore, we have concluded, as noted above, that this is an appropriate case to exercise our discretion not to inquire into the complaint.

37. The application is therefore dismissed.