Selwyn Pieters v. Toronto Board of Education (Plant Operations), 1998 CanLII 18255

[1998] OLRB REP. JANUARY/FEBRUARY 104

1881-96-OH Selwyn Pieters, Applicant v. Toronto Board of Education (Plant Oper­ations), Responding Party v. Canadian Union of Public Employees, Local 134 and the African Canadian Legal Clinic, Intervenors

BEFORE: Kevin Whitaker, Vice-Chair.

APPEARANCES: Selwyn Pieters for the applicant; S.C. Raymond, G. G. Vuicic, Lilianna Simonetta, Tony Eichhorn and Chad Scarlett for the responding party; Judith McCormack, Steve Lillico, Dave Smith and John Weatherup for Canadian Union of Public Employees, Local 134; Michelle Williams for the African Canadian Legal Clinic.

DECISION OF THE BOARD; January 15, 1998

I

1. This is a request for reconsideration by the applicant in a complaint under section 50 of the Occupational Health and Safely Act (the "OHSA"). The Board is asked to reconsider its decision of May 21, 1997 which dismissed the complaint. The two intervenors, the Canadian Union of Public Employees Local 134 ("CUPE") and the African Canadian Legal Clinic (the "ACLC") support the request for reconsideration. The respondent opposes reconsideration. For reasons which follow, the request for reconsideration is dismissed.

2. The applicant is an African Canadian. In the complaint, he alleged that he was harassed and discriminated against by his employer on the basis of his race. The alleged acts of discrimination and harassment included in part, exposure to physical hazards in the workplace. As a preliminary matter, the respondent conceded that the Board had jurisdiction over the matter but argued that as the complaint was about a violation of human rights, the Board should exercise its discretion under section 50(3) of OHSA by dismissing the application. In the respondent's view, the complaint was more properly brought before the Ontario Human Rights Commission (the "Commission").

3. In response, the applicant argued that the complaint was broader than the respondent's characterization and not just about issues of discrimination and harassment on the basis of race. Alternatively, the applicant took the position that even if the respondent's characterization was correct, deferral was inappropriate as there was no outstanding application before the Commission. The applicant also suggested that deferral to the Commission would be inappropriate because the Commis­sion has failed and will continue to fail to properly exercise its jurisdiction.

4. A hearing of the Board was convened before a panel consisting of myself, Board Member H. Peacock and Board Member (as she then was) S. C. Laing. Argument was heard on a number of preliminary issues including the issue of deferral to the Commission. On the issue of deferral, the applicant wished to call factual and expert opinion evidence to establish that the Commission was not properly exercising its mandate under the Ontario Human Rights Code (the "Code").

5. For the purposes only of dealing with the preliminary motion on deferral, the Board accepted as proven, the allegations set out in the complaint. The Board declined to hear evidence concerning the efficacy of the Commission. In its decision of May 21, 1997, the Board determined that the matter was principally about harassment and discrimination on the basis of race. Further and on that basis, the Board concluded that it should exercise its discretion under section 50(3) of OHSA by declining to inquire into the complaint as it was more appropriately brought before the Commission.

6. The applicant seeks reconsideration of the Board's earlier decision on the following grounds:

7. that the Board made a number of significant factual errors;

8. that the Board erred in declining to hear evidence concerning the Com­mission's failure to exercise its jurisdiction under the Code;

9. that the Board erred in its exercise of discretion pursuant to section 50(3) of the OHSA generally and more particularly;

10. that the Board exercised its discretion in a manner which contravened section 15 of the Canadian Charter of Rights and Freedoms (the "Char­ter") and sections 1, 9 and 11 of the Code.

11. The applicant asserted that reconsideration was appropriate as there was evidence now available which could not have been obtained before by due diligence. It was suggested that the Board's earlier decision was contrary to Board policy, patently unreasonable and wrong in law. It was also argued that there were significant issues of law and policy raised in the complaint which alone would justify a review of the earlier decision.

12. The two intervenors adopted the applicant's position in its entirety. The respondent opposed reconsideration on the basis that the Board's established threshold criteria for reconsideration were not met. Alternatively, it was argued that the earlier decision was correct in any event.

13. By endorsement of July 7, 1997, the panel of the Board who issued the decision of May 21, 1997 directed that a hearing be held for purposes of considering the application for reconsideration. The matter was heard on September 24, 1997. The Board reserved its decision at that time.

II

The Standard for Reconsideration

10. The main thrust of the respondent's opposition to reconsideration is based on the Board's jurisprudence dealing with its reconsideration powers. The Board enjoys a broad discretion to reconsider its decisions. Section 50(4) of OHSA provides for the application of what is now section section 114 (I) of the Labour Relations Act, 1995 (the Act") in proceedings under section 50 of OHSA. Section 114(1) of the Act provides as follows:

11. (1) The Board has exclusive jurisdiction to exercise the powers conferred upon it by or under this Act and to determine all questions of fact or law that arise in any matter before it, and the action or decision of the Board thereon is final and conclusive for all purposes, but nevertheless the Board may at any time, if it considers it advisable to do so. reconsider any decision, order, direction. declaration or ruling made by it and vary or revoke any such decision, order, direction, declaration or ruling.

12. The Board has over a series of decisions, established a structure for the exercise of its reconsideration discretion. This structure represents an attempt to balance the need for finality in decision making, with an ability to correct decisions that are either wrong or made in error. Throughout this body of jurisprudence, the Board has often commented on the need for finality in labour relations adjudication. Unlike some other forms of litigation, parties who bargain collectively usually co-exist in long term relationships. The success of this co-existence depends in part on the parties' awareness of their relative positions on an ongoing day to day basis. This requires not only speedy adjudication, but final dispositions that may be relied upon for planning purposes.

13. The respondent suggested that the Board's threshold test for permitting an application for reconsideration is set out in K-Mart Canada Limited (Peterborough) [1981] OLRB Rep. Feb. 185 at paragraph 4:

14. To avoid abuse of the reconsideration provision and bring some finality to its adjudicated decisions the Board has adopted principles not unlike those of the courts. The Board will not normally accede to a request to consider unless the party requesting reconsideration intends to adduce new evidence which was not previously available to them by the exercise of due diligence. and then only where such additional evidence, if proved, would be likely to make a substantial difference to the outcome of the case. Reconsideration is therefore generally restricted to allowing a party to adduce evidence or make representation which it did not have a previous opportunity to raise. The Board may also consider such factors as the motives for the request for reconsideration in light of a party's conduct, and the resulting prejudice to another party if the case is reopened. (See, generally, International Nickel Company of Canada, 63 CLLC 16.284: The Detroit River Construction Limited, 63 CLLC ¶116.260; National Steel Car Corporation Limited, [1966] OLRB Rep. Apr. 55; Canadian Union of General Employees. [1975] OLRB Rep. Apr. 320; York University. [1976] OLRB Rep. Apr. 187 affirmed, sub. nom. Jordan 5: Ontario Labour Relations Board, York University Faculty Association, York University, 78 CLLC ¶114.132 (Ont. Div. Ct.).

15. The applicant and intervenors argued that the appropriate threshold test was broader. In their view, the Board may also appropriately reconsider where the original decision is either wrong in law or if there are significant issues of law or Board policy to consider. In support of this proposition, the applicant relied upon the following passage from the Board's decision in John Entwistle Construc­tion Limited [1979] OLRB Rep. Nov. 1096 at paragraph 5:

16. The Board exercises its jurisdiction under section 95(1) of the Act to reconsider and vary or revoke any decision with care and caution in order not to undermine the finality of its decisions and, as stated by the Board in Canadian Union of General Employees [1975] OLRB Rep. April 320:

"Generally, the Board will not reconsider a decision unless a party proposes to adduce new evidence which could not previously have been obtained by reasonable diligence and the new evidence is such that, if adduced, it would be practically conclusive or a party wishes to make representations or objections not already considered by the Board that he had no opportunity to raise previously."

These are generally standards which the Board has developed as guidelines and which are useful not just to guide the Board in making its decisions, but also to allow parties who may be affected by the Board's decisions some degree of certainty of what to expect from the Board. While it is important for the purpose of certainty that these standards generally be adhered to, it is equally important that they not be followed inflexibly. Although neither of the two conditions precedent stated in the Canadian Union of General Employees case, supra, are satisfied here, the request does raise significant and important issues of Board policy and for this reason the Board will review its decision to determine if it should vary or revoke the decision.

14. The applicant and intervenors also find support for their position in paragraph 4 of the Board's decision in Imperial Tobacco Products (Ontario) Limited, Tobacco Workers International Union, Local 323, Charles Hill, Alexander Jackson, Sydney Harker, John Wynd, Albert Battell, An­struther Willaimson, George Jones, Harvey Stewart, Leslie Cook and Bruce Starkey, [1974] OLRB Rep. Sept. 609:

15. In this case no question of additional evidence is involved. In fact the original hearing involved very little evidence and was devoted to rather detailed legal argument that could be characterized as preliminary in nature. Rather in this case, one of the respondents wishes to make additional legal argument although it had every opportunity to make submission to the Board at the original hearing. For this reason alone the Board should be exceptionally cautious in even beginning to entertain reargument. But having said this, it should not be said that the Board will never listen to additional legal argument particularly when its original decision is clearly wrong in law or inadvertently contrary to earlier Board practice. In such circumstances it is indeed fortunate that the Board has power to correct its error and thereby avoid the need for one or both of the parties to spend the time and money entailed in having some other forum consider the Board's decision (which, having regard to the privative clause in the legislation, might prove fruitless in any event).

16. There is little doubt that the formulation in K-Mart, supra is widely understood to accurately capture the Board's approach in reconsideration requests. Do the Board's decisions in Imperial Tobacco and John Entwistle suggest a different standard, and if so is it the correct one'? It should be noted in passing that none of the parties suggested that the standards for reconsideration should be different in this case because the application arises under the OHSA as opposed to the Act. This makes sense, given the fact that in this case particularly, the workplace was organized and the events in issue took place within a collective bargaining environment. For these reasons, the same policy considerations apply.

17. Both Imperial Tobacco and John Entwistle begin their discussion of the scope of the Board's reconsideration power by referring to the usual concerns about expedition and finality in collective bargaining matters. In Imperial Tobacco, then Chair G.W. Adams observed that in order to protect the finality of the decision making process, the Board should be "exceptionally cautious" about entertaining "reargument". The decision then goes on to say "it should not be said that the Board will never listen to additional legal argument particularly when its decision is clearly wrong in law or inadvertently contrary to Board practice." (underlining added).

18. In John Entwistle. after reciting the usual test (as described in K-Mart), the Board went on to comment that these criteria should not be "followed inflexibly". The Board remarked that the request for reconsideration in that case did raise "significant issues of Board policy" and for that reason, it would embark on a reconsideration inquiry notwithstanding the fact that the applicant's reconsideration request did not meet the usual criteria.

19. In my view, the Board's decisions in John Entwistle and Imperial Tobacco do not indicate an expansion of the test described in K-Mart. Rather, they recognize that a statutory grant of discretion may be structured but not fettered. This means that in some cases. the discretion may be appropriately exercised, despite the fact that an applicant seeking to invoke the discretion has not squarely brought itself within the four corners of the test described in the jurisprudence.

20. This does not dilute the Board's concern that reconsideration should not merely be another opportunity to re-argue a case. Significant private and public resources are committed to litigation when matters go before the Board. Following litigation, parties make decisions and choices in the collective bargaining process which are based on decisions of the Board. For these purposes, certainty and finality are of critical importance. Where the Board does decide to reconsider a matter, it means that the litigation process may be repeated, with all of the attendant costs and uncertainties.

21. Where the Board does embark on a reconsideration inquiry, it should generally not be just' because a matter turns on a question of significant Board policy or is arguably wrong. Most cases will in fact turn on such points. It is rare for cases to be decided where an alternative result is not arguable. This is why matters require adjudication in the first place, because reasonable people disagree on the appropriate solution to a problem. What should justify the reconsideration exercise is some considerable uncertainty around the policy, or an apparent absence of consideration or discussion of the policy in Board decisions, or apparent inadvertence or a failure to deal with issues or authorities which are at the heart of the matter in dispute.

22. Practically, and as a guidepost for parties, this approach means that the Board will examine requests for reconsideration on a case by case basis and that it may depart from the usual threshold test if there are compelling reasons to do so. Compelling reasons may include the fact that in the words of Imperial Tobacco, the earlier decision was "clearly wrong in law" or "inadvertently contrary to Board policy". Generally however, parties should not be permitted "another kick" at the case simply on the theory that the decision is arguably incorrect or touches on a matter of significant Board policy. There must be more to it than that, usually something about the Board's treatment of those issues or questions of law.

III

22. The grounds for reconsideration are set out generally in paragraph 6 of this decision. Each will now be examined in turn for purposes of determining whether as a threshold issue, they are appropriately a basis for reconsideration.

Factual Errors

23. The first ground for reconsideration is that the Board made three significant errors of fact. The applicant and intervenors argued that these errors are significant in that if not made, they would change the result. Firstly, that the Board erred in finding that the applicant's last day of active employment was September 23, 1996 rather than November 13, 1996. Secondly, that the Board erred in finding that there was some doubt about whether the respondent would understand that the applicant was pursuing rights under the OHSA. Thirdly, that the Board failed to deal with the culminating incident resulting in the applicant's dismissal.

24. Dealing with the suggestion that the Board erred in determining the last day of active employment, having heard the applicant's submissions on this issue I would agree that an error was made in this regard. It is not the case however that this error if not made, would have made any difference in the result. The decision did not turn in any way on this finding. This is not an appropriate basis for reconsideration.

25. The other two issues of what the respondent would have understood the applicant's concerns to be about, or whether the Board dealt in its decision with the culminating incident do not deal with errors of fact. Rather, these deal with whether the Board properly considered the various facts set out in the application. This concern really goes to the appropriateness of the Board's analysis of the facts as opposed to its findings. At the original hearing of the application, the applicant had an opportunity to address (and took that opportunity) what it was that the application should be taken to mean and how the Board should deal with the respondent's motion in that context. To that extent, on this point at least, the applicant wishes only to reargue these issues. He has nothing to bring to the debate which was not available to him when the issues were first considered.

26. For these reasons, the applicant's concerns about errors of fact are not sufficient to justify reconsideration.

Error in Declining to Hear Evidence about the Commission

27. The next basis for reconsideration is the suggestion that the Board erred in declining to hear evidence about the efficacy of the Commission.

28. The decision of May 21, 1997 at paragraph 11, records that the applicant wished to call expert evidence to establish that "...the Commission continues to fail to properly exercise its jurisdiction under the Code".

29. At paragraphs 69 and 70 of the earlier decision, the Board returned to this issue and indicated that it did not consider itself competent to determine whether the Commission was doing its job or not. The Board also suggested that concerns about the Commission's competence were best left to the courts or the legislature.

30. Dealing with the arguments in support of reconsideration on this issue, it cannot be said that the applicant or intervenors wish to do anything other than re-argue this point. The applicant argued that a decision of the Ontario Court (General Division) in Kulyk v. Toronto (City) Board of Education (1997) 24 C.C.E.L. (2d) 63 which was issued but not reported until after the decision of May 21, 1997 constitutes new evidence not reasonably available at the time of the earlier hearing. With respect, I cannot agree. There is really no issue that such a decision constitutes "evidence". Even if I accepted the suggestion that the decision was not available to the parties at the time of the hearing of the matter, it might only be an appropriate basis for reconsideration if the issue decided in the case was directly on point and binding. Having reviewed the case, it is fair to say that it may be of some general assistance, but it is not directly on point nor binding on the Board with respect to its discretion under section 50 of the OHSA or section 111 (2)(e) of the Act. Taking the applicant's argument at its highest on this issue, I cannot say that if Kulyk had been before the Board when it decided the respondent's preliminary motion, that the result would have been different.

31. Are there other reasons to reconsider on this point? Was the decision "inadvertently contrary to Board policy" or "clearly wrong in law" to use the words of Imperial Tobacco? In my view neither of these concerns apply. It cannot really be said that there is a Board policy on the issue framed by the applicant here. In Meridian Magnesium Products Limited ("Meridian") [1996] OLRB Rep. Nov./Dec. 964 which is cited liberally in the decision of May 21, 1997, the Board did refer to material filed by the applicant in that case dealing with the efficacy of the Commission. This lead to Board in that case to comment that it had "concerns" about the Commission, but no evidence was heard which lead to findings of fact about whether the Commission does what it is supposed to do. The decision in this case not to hear the evidence proposed does not turn on a question of Board policy.

32. Dealing with the issue on a broader scale, there have been cases where the Board in exercising its deferral discretion under the Act has remained seized of an application pending arbitration proceedings. Presumably, this means that the Board may examine the conduct of those proceedings after they have occurred to determine whether they have substantially dealt with issues raised in Board applications. Where such deferral happens, the Board acts having regard to the statutory authority for arbitration proceedings set out in the Act. It would be inappropriate for the Board to determine in advance that a particular board of arbitration could not be trusted to carry out its statutory mandate.

33. Is the decision not to hear this evidence clearly wrong in law? It is a decision made in the exercise of the Board's broad discretion to consider evidence. Section 50(4) of the OHSA provides for the application in these proceedings of section 111 (2)(e) of the Act:

111.(2) Without limiting the generality of subsection (1), the Board has power,

(e) to accept such oral or written evidence as it in its discretion considers proper. whether admissible in a court of law or not;

34. This discretion permits the Board to have regard to evidence that it considers proper, regardless of whether it would be admissible under the rules of evidence. No authorities were relied upon by the applicant or intervenors on this point which would lead to the conclusion that the Board's exercise of discretion on this point was wrong. In these circumstances, it cannot be said that the decision to preclude this evidence was clearly wrong in law. Accordingly reconsideration on this point is unwarranted.

35. Despite the fact that I have not been persuaded that reconsideration is appropriate on this point, there are a number of observations which are in order. Firstly, it should be understood that the applicant's proposed evidence on this issue was for purposes of having the Board conclude generally, that the Commission has failed to exercise its jurisdiction under the Code and for that reason the Board should not defer to it where there is a concurrent jurisdiction as agreed by the parties in this case.

36. Secondly, the applicant has not brought a concurrent complaint to the Commission. Any determination by the Board as to how the Commission might deal with such an application (which is how it would be relevant to this case) is purely speculative.

37. Thirdly, it may be that the Board is competent to some extent to determine whether the Commission has dealt with a particular complaint in a manner which is similar to how it would be dealt with under section 50 of the OHSA. The Board lacks the human rights expertise however to sit in judgement of the Commission to determine whether it does its job under its home statute.

38. Finally, the courts have and will continue to exercise a type of supervisory jurisdiction over administrative agencies such as the Commission. There are well established prerogative remedies that may be invoked if a tribunal misconducts itself on the magnitude suggested here by the applicant. Indeed, it appears from the material filed by the applicant and intervenors in the reconsideration application that there is at least one pending action before the courts designed to deal precisely with this issue.

Did the Board Err in the Exercise of its Discretion Pursuant to Section 50 of the OHSA

39. This ground for reconsideration can be summarized (in my words) as comprising four alternative arguments all of which relate in part to the manner in which the Board's exercised its discretion under section 50 of the OHSA:

40. that it is inappropriate to "characterize" an application under section 50 of the OHSA to determine whether it should be deferred to another forum;

41. in the alternative, that the Board mischaracterized the application as being principally about issues of discrimination and harassment on the basis of race, rather than about occupational health and safety issues;

42. in the alternative, that the Board improperly applied the notion of de­ferral in a manner which is inconsistent with the use of deferral by the Board generally;

43. in the alternative that the Board should have at the least, remained seized of the matter pending any application to the Commission.

44. There is no serious suggestion that in dealing with this ground, the applicant has satisfied the threshold test for reconsideration as set out in K-Mart. The argument is made however that the Board's earlier decision is wrong and turns on a significant issue of law and/or policy.

45. The applicant's challenge on this point is really with the general analysis adopted by the Board in both Meridian, supra, and in the decision of May 21, 1997, which leads to the "characteriza­tion" of an application. The reasoning is that once a matter is characterized, it is possible to determine on a comparative statutory analysis which forum is best suited for the type of application and finally, that where a matter is really about human rights, the Board will not retain jurisdiction pending disposition by the Commission.

46. Given that the test in K-Mart for reconsideration has not been met, are there any compelling reasons in this case to reconsider the Board's conclusions on this issue? In my view, it is difficult to say that there has been a failure to apply Board policy or that the decision is clearly wrong in law.

47. Perhaps surprisingly, the issue of how to deal with applications under section 50 of the OHSA which raise issues of human rights was not addressed by the Board before the recent decision in Lyndhurst Hospital [1995] OLRB Rep. Nov. 1371. Since then, the Board has addressed this issue in several other cases, Meridian, and in the decision in this matter dated May 21, 1997. In these two latter cases, after hearing full argument on this issue from experienced labour counsel, the policy and legal issues were thoroughly canvassed, discussed and then decided.

48. Dealing only with the issue of Board policy, it is not possible to conclude that the earlier decision is contrary to Board policy. It is most certainly not "inadvertent" as that term is used in Imperial Tobacco. With respect to the issue of whether the analysis adopted by the Board now in Meridian and in the earlier decision here, is clearly wrong in law or even just simply wrong, I cannot agree with the applicant. The statute provides a broad discretion to the Board under section 50 of the OHSA and there are no authorities relied upon by the applicant or intervenors which would suggest that the general approach being contested here is incorrect or wrong in law by any standard.

49. For these reasons, it is not appropriate to reconsider on this ground.

Does the Exercise of Discretion Breach section 15(1) of the Charter and sections 1, 9 and 11 of the Code

46. Section 15(1) of the Charter states:

15(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.

47. There have been many judicial pronouncements about the importance and purpose behind section 15(1) of the Charter. Most recently, Mr. Justice LaForest in Eldridge v. British Columbia (Attorney General) as yet unreported decision of the Supreme Court of Canada released on October 9, 1997, File No. 24896 at paragraph 54, succinctly described the two distinct purposes served by section 15(1):

48. In the case of s. 15(1), this Court has stressed that it serves two distinct but related purposes. First, it expresses a commitment — deeply ingrained in our social, political and legal culture — to the equal worth and human dignity of all persons. As McIntyre J. remarked in Andrews, supra, at p. 171, s. 15(1) "entails the promotion of a society in which all are secure in the knowledge that they are recognized at law as human beings equally deserving of concern, respect and consider­ation". Secondly, it instantiates a desire to rectify and prevent discrimination against particular groups "suffering social, political and legal disadvantage in our society"; see R. v. Turpin, 1989 CanLII 98 (SCC), [1989] 1 SCR. 1296, at p. 1333 (per Wilson J.); see also Beverley McLachlin, "The Evolution of Equality" (1996), 54 Advocate 559, at p.564. While this Court has confirmed that it is not necessary to show membership in a historically disadvantaged group in order to establish as. 15(1) violation, the fact that a law draws a distinction on such a ground is an important indicium of discrimination; see Miron v Trudel, 1995 CanLII 97 (SCC), [1995] 2 SCR. 418, at para. 15 (per Gonthier J.) and at paras. 148-149 (per McLachlin J.), and Egan v. Canada, 1199512 5CR. 513, at paras. 59-61 (per L'Heureux- Dubé J.).

49. Sections 1, 9 and 11 of the Code provide:

50. Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status or handicap.

51. No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.

11.—(1) A right of a person under Part 1 is infringed where a requirement, qualification or factor exists that is not discrimination on a prohibited ground but that results in the exclusion, restriction or preference of a group of persons who are identified by a prohibited ground of discrimination and of whom the person is a member, except where,

(a) the requirement, qualification or factor is reasonable and bona fide in the circumstances; or

(b) it is declared in this Act, other than in section 17, that to discriminate because of such ground is not an infringement of a right.

(2) The Commission, the board of inquiry or a court shall not find that a requirement, qualification or factor is reasonable and bona fide in the circumstances unless it is satisfied that the needs of the group of which the person is a member cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.

(3) The Commission, the board of inquiry or a court shall consider any standards prescribed by the regulations for assessing what is undue hardship.

49. The applicant is described by himself and the intervenors as a "racialized" person. This means that he belongs to a group of persons in society (African-Canadians) who are routinely character­ized by others on the basis of race. This characterization by others includes the attribution of personal traits and qualities based on assumptions about a particular race which bear no relationship to the person so characterized. Non-racialized persons are all others.

50. The applicant and intervenors argue that the Board's characterization of matters as being about human rights or about health and safety, and deferral on that basis, will result in complaints under section 50 of the OHSA by racialized persons to go unaddressed. It is suggested that as this process will not be applied to persons who are not racialized, it amounts to discrimination on the basis of a prohibited ground.

51. The alleged discrimination is observed in this case according to the applicant and interve­nors, by comparing the circumstances of racialized persons in section 50 complaints to others. Non­racialized persons who file complaints under section 50 of the OHSA is the comparator class.

52. The applicant and intervenors suggest that if racialized persons are obliged to have com­plaints which would otherwise be dealt with by the Board, go before the Commission, there is a breach of section 15(1) of the Charter and sections 1, 9 and 11 of the Code, whether or not the Commission is less effectual than the Board. For this reason, it is argued that it is not necessary to determine whether a complainant is disadvantaged before the Commission as opposed to the Board. The analysis is that "separate but equal" treatment before and under the law amounts to discrimination.

53. Is this a question which is an appropriate basis for reconsideration? Certainly, the issue was not argued by the parties when the Board considered the matter initially, nor was it addressed by the Board on its own motion. Although the ACLC did not participate in the initial hearing, the other parties had an opportunity at that point to raise and deal with the issue. It was clear to all at the time of the first hearing that the consequences of allowing the respondent's motion would be to have the matter dismissed on the grounds that it was more appropriately before the Commission.

54. Although it is probably the case that there is no appropriate basis for reconsideration of this issue having regard to the Board's jurisprudence, it has not been argued before, was argued fully at the reconsideration hearing and will in all likelihood be raised again if it remains unaddressed. For that reason, I will deal with it now.

55. Not only is the Board required to interpret legislation in a manner which is consistent with the Charter, but there is now little doubt that the Board is obliged to exercise its discretionary powers granted under statute in a manner which is consistent with the Charter (see Eldridge v. British Columbia (Attorney General), supra). It is also the case that the provisions of the Code supersede those of the OHSA and apply equally to the exercise of the Board's discretionary powers (see section 47(2) of the Code).

56. If through the exercise of the Board's discretion under section 50(3) of the OHSA, racialized persons are being denied access to the provisions of section 50 where others are not, it will amount to a breach of both section 15 of the Charter and sections 1 and 9 of the Code.

57. There are a number of layers to the applicant's argument. The first is that any health and safety complaint by a racialized person that includes an element of discrimination will be diverted to the Commission. The intervenor in its factum at paragraph 52 suggests that "a policy that excludes complaints which include a component of discrimination from redress under the OHSA constitutes a prima facie breach of sections 1, 9 and 11 of the Code and section 15 of the Charter". I would agree with this proposition, but I do not agree that it describes what the Board has done in this case.

58. Complaints under section 50 of the OHSA by members of racialized groups are more likely to include aspects which touch on issues of discrimination on the basis of race. The underlying assumption by the applicant and intervenors goes further however. It is also assumed that if there is an element of discrimination and harassment on the grounds of race in the complaint, that the matter still likely be characterized as being about human rights and not about health and safety in the workplace. This is not the analysis used by the Board in this case nor in Meridian. Rather, the characterization is based essentially on the "pith and substance" of the complaint. If this approach is adhered to, complaints which possess a dimension of racial discrimination will in fact remain at the Board so long as that is not their principal character.

59. The next issue is whether racialized persons who file complaints under section 50 which are principally about discrimination on the basis of race, are similarly situated to non-racialized persons who file section 50 complaints concerning health and safety issues that do not involve acts of discrimi­nation on the basis of race. The applicant's theory is that the very act of experiencing discrimination in the workplace is inherently a health and safety issue that arises in the employment relationship. Further, the continuation of acts of discrimination past the first moment are acts of reprisal against the worker, particularly, where as in this case, the acts of discrimination are challenged by the worker. Why, asks the applicant, is this not appropriately dealt with by the Board, as it would with any other unsafe work assignment?

60. Acts of discrimination on the basis of race may amount to risks to health and safety. This is conceded by the employer in this case. This does not mean however that "race discrimination" and "health and safety" are identical categories. There are differences.

61. Our society appears to attach a particular significance to acts of discrimination on the basis of race. Such conduct is proscribed by section 15 of the Charter, and by various provincial, federal and international statutes and conventions. There is a wealth of Canadian and international jurisprudence, literature and other cultural treatments, which describe and document the experience and problems of race discrimination. In Ontario, the Code deals in a detailed and prescribed way with how these issues are to be regulated by law. The Code even provides in section 28 for a special branch of the Commission to have a particular focus on issues of race discrimination. As the factum of the intervenor ACLC documents, the historical underpinnings of race discrimination and the social conditions which continue to permit its practice, have little to do generally with issues of health and safety.

62. These general observations support the notion that there is a qualitative distinction to be made between issues of race discrimination and health and safety. If that is so, then complaints which deal principally with one or the other are not of the same nature. This in turn means that complainants in the two categories are not similarly situated. If not similarly situated, then differences in process, rights, remedies and enforcement as between the Board under section 50 of the OHSA, and the Commission under the Code, should not necessarily amount to a breach of section 15 of the Charter or sections 1, 9 and 11 of the Code. For these reasons, I do not see the two categories of complainants: "racialized applicants in matters principally about race discrimination" and "others in matters that do not deal with discrimination" as being similarly situated. In my view the two categories are qualitatively different and in fact require different treatment strategies. The applicant's "separate but equal" argument only applies if there are two independent processes which are designed to achieve the same results. That is not the case here. The process before the Board is designed to deal with reprisals in the context of health and safety issues. The process under the Code is designed to deal with discrimination on the basis of race.

63. If I am wrong on this point (because the two categories of complainants are similarly situated), is the Board's practice of deferral in breach of the Charter or the Code?

64. If persons in these two categories are similarly situated, then there is discrimination if persons are disadvantaged by having to seek redress before the Commission under the Code as opposed to the Board under section 50 of the OHSA. Part of the Board's reasoning in this case and in Meridian. is based on the conclusion that the Code provides a superior grid of rights, processes and remedies for dealing with the nuanced complexities of discrimination complaints. The Board's decision to "send someone to the Commission" flows from the conclusion that a complainant's interests will be more effectively served by the agency which is designed to deal with the particular nature of his or her concerns, rather than the agency which has a broader jurisdiction, a different expertise, and processes and remedies less tailored to issues of discrimination.

65. How can it be said that a complainant who is told to go to an agency which appears to be more capable of fully addressing his or her concerns is being put at a disadvantage or being denied a benefit'? It can only be said if one is prepared to look beyond the comparative statutory analysis and to rank the relative performances of the two agencies who in this case may possess a concurrent jurisdiction.

66. This in turn takes the argument back to the issue of whether the Commission is in fact doing its job. For reasons provided earlier at paragraphs 27 to 38, I will not revisit this issue.

67. For these reasons, I find that the decision of the Board dated May 21, 1997 does not contravene the provisions of either the Code or the Charter. Accordingly, this application for reconsider­ation is dismissed.