Ford Motor Company of Canada Ltd. v. Ontario (Human Rights Commission), 2001 ONCA 21234

DATE: 20011214

DOCKET: C32965

COURT OF APPEAL FOR ONTARIO

CATZMAN, ABELLA and SHARPE JJ.A.

B E T W E E N:

THE ONTARIO HUMAN RIGHTS COMMISSION

Christopher G. Riggs for the appellant Ford Motor Company of Canada Ltd.

Respondent

Mark Hart and Geri Sanson

for the respondent Mike Naraine

• and -

MIKE NARAINE

Naomi Overend and Prabhu Rajan for the respondent The Ontario Human

Rights Commission

Respondent

• and -

Susan Luft for the intervener,

FORD MOTOR COMPANY OF CANADA LTD., GORD BATSTONE, GEORGE GOYTON, ANDY BARR, W.H. DOBSON, BOB DARROGON and MIKE TEIGHE

Basil Hargrove on his own behalf and on behalf of all members of the National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada)

Appellant

HEARD: November 3, 2000

On appeal from the judgment of the Divisional Court dated June 23, 1999 (Justices Dennis F. O’Leary, James B.S. Southey and Theodore P. Matlow), reported at (1999), 1999 18727 (ON SCDC), 124 O.A.C. 39.

ABELLA J.A.:

BACKGROUND

1. [1] This appeal is from the decision of the Divisional Court dismissing an appeal from a Board of Inquiry of the Ontario Human Rights Commission. The Board of Inquiry had ordered the reinstatement of Mike Naraine to employment with the Ford Motor Company of Canada Ltd. (“Ford”), notwithstanding that an arbitrator had ruled ten years earlier that his discharge was justified.

2. [2] Mr. Naraine describes his racial and ethnic identity as East Indian. Born in Guyana in 1943, he immigrated to Canada in June of 1967. He began to work for Ford as an electrician on April 23, 1976. Over nine years later, on August 19, 1985, he was dismissed from his employment.

3. [3] Of the approximately 160 electricians employed by Ford, only five or six were non-white. Of these, Mr. Naraine was the only East Indian. For his first six years at Ford, between 1976 and 1982, Mr. Naraine was not the subject of any discipline. However, during his last three years, between 1982 and 1985, he was cited for five disciplinary incidents: two refusals of work orders (February 22, 1982 and October 14, 1984); two incidents of verbal insubordination (July 18, 1983 and April 4, 1985); and one verbal and physical altercation with a co-worker (August 9, 1985). On August 19, 1985, ten days after the latest altercation, Ford discharged Mr. Naraine.

4. [4] Prior to his discharge, on May 24, 1985, Mr. Naraine had filed a human rights complaint with the Ontario Human Rights Commission (the “Commission”) alleging racial discrimination and harassment against Ford and certain Ford employees. After his discharge, on October 24, 1985, Mr. Naraine filed another human rights complaint. He also filed three grievances through his union: two involving twelve-day suspensions for the incidents of verbal insubordination cited above, and the third against his discharge from Ford.

5. [5] In the spring of 1987, Mr. Naraine was hired by General Motors as an electrician. He was fired two years later, complained about it to the Commission, and settled the complaint for $15,000.

PRIOR PROCEEDINGS

6. [6] Mr. Naraine’s grievances were arbitrated by E.E. Palmer, Q.C. in February 1986. The one-day hearing resulted in a decision released on April 3, 1986. Although the arbitrator allowed one of the grievances, he dismissed the other two, including the grievance against the discharge.

7. [7] Although Mr. Naraine filed his human rights complaints in May and October of 1985, they did not proceed from the investigation stage to the appointment of a Board of Inquiry until February 1993. In October of 1993, after the original chair resigned for medical reasons, the Commission appointed Professor Constance Backhouse to conduct the Board of Inquiry (the “Board”).

8. [8] Ford brought two preliminary motions before the Board. First, it moved to dismiss the complaint or for a stay of proceedings on the grounds of the Commission’s failure to attempt to settle, inadequate disclosure, biased investigation, and delay. The Board dismissed this motion on April 21, 1994 in an interim decision. On Ford’s application for judicial review of this decision, the Commission moved to quash the application as premature. On January 13, 1995, the Ontario Court of Justice (General Division) granted the Commission’s motion and quashed Ford’s application.

9. [9] Ford then moved before the Board to dismiss the complaint on the grounds that it was res judicata because of the prior arbitration proceeding. The Board dismissed this motion on February 13, 1995.

10. [10] On July 25, 1996, the Board released its decision on the merits. It found that Ford had discriminated against Mr. Naraine during his employment and in his discharge.

11. [11] On December 9, 1996, the Board released its decision on remedy. It found that Mr. Naraine was entitled to the following relief: reinstatement; restored seniority; special damages for the income and benefits he would have received between his discharge at Ford and his hiring at General Motors; $20,000 in general damages for the infringement of his rights; $10,000 in general damages for mental anguish caused by what the Board found to be reckless contraventions of the Code; and pre-judgment interest on the special and general damages.

12. [12] Ford appealed the Board’s decisions to the Divisional Court pursuant to s. 42(3) of the Code, which states:

13. An appeal under this section may be made on questions of law or fact or both and the court may affirm or reverse the decision or order of the board of inquiry or direct the board to make any decision or order that the board is authorized to make under this Act and the court may substitute its opinion for that of the board.

14. [13] The Divisional Court dismissed the appeal on June 23, 1999.

15. [14] On July 12, 1999, Ford sought leave to appeal to the Court of Appeal, proposing six questions for consideration in the appeal. Leave was granted by this Court on October 8, 1999 on the following ground:

16. Did the Divisional Court err in failing to recognize the legal significance of the fact of the respondent’s dismissal for cause because of an assault on a fellow employee?

17. [15] On April 27, 2000, a subsequent panel clarified the question as follows:

18. The leave granted does not extend to a review of the finding of systemic discrimination. Rather, the question is, in light of jurisprudence such as Weber v. Ontario Hydro what is the effect, if any, of the arbitration award on the jurisdiction and power of the Board of Inquiry to grant the remedy of reinstatement.

19. [16] This appeal, therefore, is not against the Commission’s finding of discrimination, but concerns only the remedy of reinstatement imposed as a result of that finding. However, in analysing that remedy and to appreciate the context for this appeal, it is helpful to outline briefly the following prior decisions: (1) the arbitration board’s April 3, 1986 decision on the grievances; (2) the Board of Inquiry’s decisions on Ford’s preliminary motions on delay and res judicata; (3) the Board of Inquiry’s July 25, 1996 decision on the merits of the complaint; (4) the Board of Inquiry’s December 9, 1996 decision on remedy; and (5) the Divisional Court’s June 23, 1999 decision.

(1) The Arbitration Board’s Decision on the Grievances (April 3, 1986)

17. [17] The arbitrator allowed Mr. Naraine’s grievance concerning a twelve-day suspension for an incident of verbal insubordination and ordered that Mr. Naraine be paid for his lost work.

18. [18] However, he dismissed Mr. Naraine’s grievance concerning another twelve-day suspension for a different incident of verbal insubordination. He also dismissed the grievance arising from Mr. Naraine’s discharge.

19. [19] In finding that the discharge was justified, the arbitrator heard some evidence of discrimination, but held that it was irrelevant to the altercation that had resulted in the discharge. He found:

20. . . . [Two] witnesses testified to situations, other than the one in question, where it was felt that the grievor had been discriminated against in a most unsatisfactory way. In both of these cases, if the factual basis for their claim was correct, clearly Mr. Naraine was treated extremely badly. However, it seems that neither of these incidents touches upon the present case. On this point, I would note that the reference to the persons who were alleged to have discriminated against the grievor were not the parties involved in the present case. Indeed, even if the grievor’s claim regarding discrimination by the Company is correct, the instant case is one where a fellow member of the bargaining unit was involved. Hence, I do not see the relevance of this evidence and do not intend to elaborate upon it.

21. [20] After reviewing the evidence, the arbitrator dismissed the grievance for the following reasons:

22. Turning to the foregoing facts, then, in the instant case again the issue is one of a factual nature. Undoubtedly, if the Company is correct as to what occurred and the testimony of [Mr. Naraine’s co-worker] is accepted, their response to the action of the grievor is completely justified. Obviously, the alleged conduct is reprehensible in the extreme and, given the grievor’s record, their decision to terminate the grievor is completely justified. On the other hand, if the facts were as the grievor states, no discipline whatsoever would be justified.

23. When one considers this factual aspect of the case, it is my view the position of the Company is to be preferred. Thus, if one looks at the position taken by Mr. Mena, the facts surrounding it are supportive of his view. Both Mr. Gorski [a Ford employee] and the Company Nurse have seen evidence of injury to him and even one of the Union witnesses accepted the fact that there was some injury, although he disputed the severity of it. If Mr. Naraine was correct, there would be no evidence whatsoever of such injury. Again, Mr. Naraine’s testimony as to what occurred seems to be less than satisfactory. There seems to be no reason why Mr. Mena would first agree to do work for him, then refuse and later go to management and make up a story such as he in fact did give to them. Further, the actions of Mr. Naraine seem somewhat in line with his past conduct.

24. In the result, then, it is my view that the present grievance is to be dismissed.

(2) The Board of Inquiry’s Decisions on Ford’s Preliminary Motions on Delay and Res Judicata (April 21, 1994 and February 13, 1995)

21. [21] The Board of Inquiry dismissed Ford’s preliminary motion to dismiss the complaint on the ground of delay. The Board concluded that the delay had not rendered it “impossible” to determine whether a breach of the Code had occurred. Moreover, the record did not disclose sufficient prejudice under the test in Nisbett v. Manitoba (Human Rights Commission) (1993), 1993 3366 (MB CA), 101 D.L.R. (4th) 744, which requires “demonstrated evidence of prejudice of sufficient magnitude to impact on the fairness of the hearing”.

22. [22] Though it dismissed Ford’s motion, the Board held that it would nonetheless “take appropriate account of the delay when it comes to weighing the evidence and fashioning the remedy.”

23. [23] The Board also dismissed Ford’s preliminary motion to dismiss the complaint on the ground of res judicata. In its motion, Ford argued that the findings of the arbitrator should bind the Board of Inquiry. Ford pointed out that the collective agreement governing the grievances contained a “no discrimination clause” prohibiting discrimination against employees “on account of race, creed, colour, nationality, age, sex, ancestry, or place of origin”, and that the human rights issues had been within the jurisdiction of the arbitrator.

24. [24] The Board dismissed Ford’s motion on the basis that two preconditions for a finding of issue estoppel were not met: identity of legal question and identity of parties. However, it held that it would give “due consideration” to the decision of the arbitrator after hearing the evidence on the merits:

25. In conclusion, then, this Board must reject [Ford’s] motion that this Board is bound by the findings and determination of the Board of Arbitration based on issue estoppel. The better course is to proceed with the hearing into the merits, giving due consideration to the previous arbitration award as seems appropriate in light of all of the evidence adduced. The arbitration decision is not conclusive at the outset. The weight to be accorded to any earlier arbitration findings is something which must be assessed against all of the evidence adduced during our hearing.

27. (3) The Board of Inquiry’s Decision on the Merits of the Complaint (July 25, 1996)

28. [25] The Board of Inquiry found that Ford had discriminated against Mr. Naraine during his employment and in discharging him.

29. [26] Mr. Naraine’s allegations of discrimination fell into several categories: job training, job assignments, racial taunts and graffiti, and disciplinary treatment and discharge. The allegations concerning job training and job assignments resulted in a finding by the Board that there was insufficient reliable evidence to make a determination because of the eleven-year delay between the filing and hearing of the complaint. The absence of written records and viva voce testimony on these allegations resulted in sufficient prejudice to Ford that the Board concluded that these aspects of the complaint should be dismissed.

30. [27] However, the Board found that there was sufficient evidence to support Mr. Naraine’s allegations involving racial taunts and graffiti, disciplinary treatment, and discharge.

31. [28] The Board upheld Mr. Naraine’s complaints about racial taunts and graffiti, and found Ford liable as an employer. The Board found:

32. The evidence as a whole indicates that the landscape at Ford was saturated with racist graffiti and slurs.

33. . . . [N]ame-calling and graffiti should be recognized for their inherent, detrimental impact on racial equality in the labour force.

34. _____ . . .

35. The singling out of certain groups of employees based on their racial or ethnic background constitutes a violation of s. 4(1) of the Code. The Complainant has established that he was subjected to an atmosphere of racial harassment and derogation, repeatedly perpetrated by a large number of individuals. The sheer number of incidents and the many individuals who participated lent the racial slurs and graffiti such an intensity that this came to constitute "a condition of employment." The poisoned working environment that Mr. Naraine experienced between 1976 and 1982 constituted a violation of s. 4(1) of the Code, which provides that: "No person shall ... discriminate against any employee with regard to any term or condition of employment, because of race, creed, colour ... nationality, ancestry or place of origin of such person or employee." After 15 June 1982, when the amended Code came into effect, this poisoned environment constituted a violation of the slightly revised provision in s. 4(1): "every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin. ..." The racially-derogatory language and graffiti that occurred after the enactment in 1982 of s. 4(2) prohibiting racial harassment in the workplace, also constitute a violation of the harassment provision.

36. _____ . . .

37. There is sufficient evidence in this case of direct supervisory involvement in, and knowledge of, the poisoned work environment to assess liability against the corporate Respondent for violation of s. 4(1) [now s. 5(1)]. The Code's deemed liability provision in s. 44 [now s. 45] transforms the act of an employee or agent into the act of the corporation itself. Within the corporate liability provision, however, there is an exception for acts of racial harassment under s. 4(2) [now s. 5(2)]. An employer's liability for the racial harassment of employees is somewhat more complex. The test is set out in Fu [Fu v. Ontario (Government Protection Service) (1985), 1985 5209 (ON HRT), 6 C.H.R.R. D/2797 (Ont. Bd. Inq.)].

38. _____ . . .

39. The Ahluwalia [Ahluwalia v. Metropolitan Toronto Board of Commissioners of Police (1983), 1983 4719 (ON HRT), 4 C.H.R.R. D/1757 (Ont. Bd. Inq.)] test for employer responsibility requires evidence that management failed to take adequate measures to correct the situation.

40. _____ . . .

41. . . . Recognizing the difficulties inherent in controlling large, industrial workplaces, I was not convinced that the company made sufficient and continuing efforts to signal its disapproval of the racially-derogatory language or graffiti. Given the widespread pervasiveness of derogatory racial terminology, the company should have taken meaningful steps to investigate all sources of the problem. Ford should not have sat back and waited for individual, isolated complaints. The company should have undertaken systemic efforts to develop and advocate company policies against racist language, to root out the offenders and to implement serious and effective measures of deterrence. Its virtual indifference to the racial slurs and graffiti renders the corporate Respondent liable for the violations of s. 4(2).

42. [29] The Board then reviewed the five incidents that had attracted discipline between 1982 and 1985 and concluded that only two warranted discipline, with neither warranting discharge. The Board made the following findings:

43. On the matter of Mr. Naraine's temper, the Respondents sought to introduce evidence regarding his termination in 1989 from employment at General Motors in Oshawa due to an alleged physical altercation with a supervisor. They also sought to introduce the court transcript relating to a criminal conviction entered against Mr. Naraine seven years after his termination at Ford. Over the strong objections of counsel for the Commission and the Complainant, I ruled this evidence initially admissible but reserved on the question of its ultimate relevance until I had heard further details. After hearing testimony concerning the background to these events, I have concluded that neither is probative of the issues before me. Both occurred years after the matters giving rise to this inquiry. The firing at General Motors resulted in the filing of a human rights proceeding, which the company settled with Mr. Naraine for $15,000. The criminal conviction was not employment-related. Both events are too far removed in time and in substance from the events in this complaint. To consider whether they independently give credence to the Respondents' contention that the central problem is Mr. Naraine's temper would require a detailed and nuanced "hearing within a hearing." This would unduly prolong and unnecessarily complicate this inquiry. Accordingly, I have concluded that the only relevant, probative testimony relates to Mr. Naraine's term of employment at Ford.

44. _____ . . .

45. Mr. Naraine grieved his dismissal through his union, and the case went to arbitration in February 1986. The arbitrator believed Victor Mena's account and refused Mr. Naraine's request for reinstatement. At the arbitration hearing, there seems to have been no evidence adduced nor any analysis undertaken of the underlying difficulties facing Mr. Naraine at Ford, which were making it virtually impossible for him to cope on the job. For a proper assessment of human rights complaints, however, all of Mr. Naraine's responses must be assessed in the context of the wider racialized working environment.

46. _____ . . .

47. . . . It is my view that all of [Mr. Naraine’s] outbursts were provoked by the discriminatory environment that was taking its toll on Mr. Naraine’s ability to function at work.

48. _____ . . .

49. The only two occasions which did warrant discipline involve the threat or infliction of physical harm. The verbal threat Mr. Naraine made to [another employee], and the verbal threats and physical contact with [his co-worker], go beyond what can be tolerated in the workplace, whether provoked in retaliation to the general level of racial harassment in the plant or not. Such breaches of the peace, although somewhat less shocking given the severely racialized context of the plant, constitute disciplinable acts on the part of the Complainant. If properly investigated by the company in the context of the poisoned working environment, this might have culminated in a suspension of several weeks' duration. These outbursts ought not to justify termination, the "capital punishment" of employment disciplinary sanctions.

50. On the facts before me, I find that there is a causal connection between the poisoned working environment and the discipline and ultimate termination meted out to Mr. Naraine.

(4) The Board of Inquiry’s Decision on Remedy (December 9, 1996)

30. [30] The Board of Inquiry found that Mr. Naraine was entitled to the following:

31. 1. Reinstatement;
32. 2. Special damages for the income and benefits he would have received between his discharge at Ford in August, 1985 and his hiring at General Motors in the spring of 1987;
33. 3. Restored seniority to reflect continued employment until his hiring at General Motors and the expunging from his disciplinary record of all but the two disciplinary penalties found to be justified;
34. 4. Re-training and employee assistance counseling;
35. 5. $20,000 in general damages for the infringement of his rights and for his experiences of victimization;
36. 6. $10,000 in general damages for mental anguish caused by reckless contraventions of the Code; and
37. 7. pre-judgment interest on his special and general damages.

38. [31] The Board concluded that reinstatement was appropriate despite Ford’s argument that time and the turbulent prior context argued against its imposition. The Commission had taken no position on whether such a remedy was warranted. The Board found:

39. Counsel for the Complainant claimed that Mr. Naraine was entitled to reinstatement with Ford, to a job comparable to the position he held when he was unjustly discharged. Respondent's counsel argued that reinstatement was not appropriate, given Mr. Naraine's history with the company and the length of time that has ensued since his termination. Counsel for the Commission took no position on reinstatement.

40. _____ . . .

41. Arbitrators have held that so long as the employment relationship appears to be viable, reinstatement orders will issue…

42. _____ . . .

43. . . . Adjudicators under the Code obviously have the authority to issue orders of reinstatement, and can have resort to the principles and values articulated in arbitration awards insofar as these conform to the goals and purposes of human rights legislation.

44. Respondent's counsel took the position that a continued employment relationship between Mr. Naraine and Ford is not viable. . . .

45. _____ . . .

46. This board has found that the circumstances resulting in Mr. Naraine's termination were discriminatory and contrary to the Code. Mr. Naraine testified that it was his wish to be reinstated, and he never wavered in this position. Now fifty-three years old, he explained that he believes he has given the better part of his working life to Ford, and feels that he still has much to offer the company. He also seeks reinstatement because he wishes to be part of the resolution of racial difficulties at Ford.

47. _____ . . .

48. . . . On the balance of probabilities, the continuation of the employment relationship appears viable.

49. During their oral argument, I invited submissions from counsel as to the financial value of reinstatement, had the board decided not to require the Respondent to reemploy Mr. Naraine. The costing out of the value of reinstatement is admittedly a complex and difficult task. Counsel for the Complainant argued that the amount should be determined by adding up the full cost of Mr. Naraine's salary and benefits until the date of his projected retirement, plus some additional amount to compensate for the "non-economic value of reinstatement," a calculation which arrived at a total of well over a million dollars. Counsel for the Commission took the position that the amount sought by the Complainant was unduly high, suggesting a figure that would be closer to half that amount, but did not offer any detailed explanation as to the basis for this figure. Counsel for the Respondent offered a persuasive critique of the calculations of the other two parties, but failed to provide any specific quantification of his own. In my opinion, none of the submissions of counsel were particularly helpful on this point, and all failed to offer any convincing quantification of the economic worth of reinstatement in these uncertain economic times.

50. _____ . . .

51. After reflecting upon the problems inherent in quantifying the value of reinstatement, and considering all of the other factors present in this case, I have concluded that only the remedy of reinstatement would properly serve as restitution to Mr. Naraine. Reinstatement is the remedy which most fully attempts to put Mr. Naraine back into the position he would have enjoyed had the wrong not occurred, to "make whole" his loss resulting from the violation of the Code. Reinstatement can also serve the educational purposes of human rights legislation in that it will signify to all Ford supervisors, employees and members of the wider community, through a concrete and highly visible order, that discriminatory conduct will be redressed by boards of inquiry. Under the circumstances, the actual arrangements for reinstatement may take some weeks to complete. However, Mr. Naraine's entitlement to payment of compensation and benefits is effective upon the parties' receipt of this decision.

52. [32] After holding that Mr. Naraine was entitled to be reinstated, the Board made several recommendations to assist in the process of reinstatement. It recommended that Ford consider: developing policies to discourage racist graffiti, name-calling, and harassment in its plants and to ensure that incidents result in “swift and certain censure”; developing an effective procedure for future complaints; and providing anti-racism education for its employees. It also recommended that Mr. Naraine consider enrolling in training to assist him in controlling his temper.

53. [33] In addition to finding that Mr. Naraine was entitled to special damages for lost income and benefits. However, it limited these damages to the period between his discharge at Ford in August of 1985 and his hiring at General Motors in the spring of 1987, concluding that Ford’s liability ended with this subsequent, comparable employment:

54. Counsel for the Complainant requested compensation for back pay (including overtime and credit for vacation days) to the date of reinstatement, less any mitigated earnings. They also requested the reinstatement of Mr. Naraine's seniority and pension to date continuously from the time of his original hire to the present. Counsel for the Commission sought back pay only to the date of Mr. Naraine's hiring at General Motors in the spring of 1987. The Commission indicated that this constituted comparable employment and terminated Ford's liability. Respondent's counsel also argued that any liability on the part of his client was severed upon Mr. Naraine's hiring at General Motors.

55. In the circumstances of this case, the appropriate order is for back-pay only up to the date that Mr. Naraine obtained employment with General Motors. Mr. Naraine was under a legal obligation to mitigate his losses, which he did. When he secured a position as an electrician at General Motors, this constituted comparable employment and terminated the Respondent's continuing liability. The fact that Mr. Naraine was discharged from General Motors in the spring of 1989 does not reactivate Ford's liability. Counsel for the Complainant argued that the circumstances of Mr. Naraine's termination at General Motors also centred around complaints of racism in the plant. This too, does nothing to reactivate Ford's liability for back-pay. Mr. Naraine brought a separate human rights complaint against General Motors, a proceeding which was settled between the Complainant and his employer before it got to adjudication. Whatever losses Mr. Naraine experienced pursuant to his claims against General Motors were resolved with the final and binding settlement he signed then. These losses cannot be mobilized afresh and drawn back retroactively into the present proceeding.

56. [34] The Board also found that Mr. Naraine was entitled to general damages in the amount of $20,000 for the infringement of his rights as well as the statutory limit of $10,000 for mental anguish caused by Ford’s reckless contraventions of the Code.

(5) The Divisional Court’s Decision (June 23, 1999)

35. [35] Ford appealed the Board’s decisions, arguing that the Board erred in the following respects: not dismissing the complaints because of delay; not applying res judicata to the arbitration board’s finding that Mr. Naraine’s discharge was justified because of his assault on a co-worker; excluding evidence of Mr. Naraine’s loss of temper after his discharge from Ford; finding a causal connection between the “poisoned working environment” at Ford and Mr. Naraine’s discharge; and imposing employer liability on Ford.

36. [36] The Divisional Court dismissed Ford’s appeal. Although it heard submissions on the appropriate standard of review, Justice Matlow for the Court held that “on the basis of any of the tests proposed, the decisions of the Board, both of law and fact, were correct and should be upheld”.

37. [37] The overall conclusion of the Divisional Court was the following:

38. Taken in its entirety, the record of the proceedings before the Board reflect, in my view, a meticulous and painstaking effort on its part to afford the parties a fair and complete hearing of the issues raised and to render decisions that were supported by the evidence and correct in law.

39. [38] On the issues of delay and res judicata, the Divisional Court held:

40. The Board heard all of the evidence before it decided [the issue of delay] and it was in an excellent position to determine whether it could proceed without prejudice to Ford. I am satisfied that its decision on this issue is supported by the evidence before it and that it is a decision for which the Board ought to be given the deference of this Court.

41. Moreover, Naraine himself was not responsible in any way for the delay caused by the Commission to which he looked to invoke the statutory process and the decision of the Board to adjudicate on all but two of his complaints reflected a resolution of the issue of delay that was fair to both him and to Ford.

42. _____ . . .

43. I agree with the Board's conclusion regarding res judicata and issue estoppel. Its fresh examination of the circumstances leading to the termination of Naraine's employment, including the alleged assault on Mena, was essential to the function that it was engaged in and was not an abuse of process. I would not interfere with the Board's decisions on this ground.

44. [39] In considering the exclusion of the evidence of Mr. Naraine’s loss of temper after his discharge from Ford, the Divisional Court found:

45. In my view, the Board was entitled to exclude this evidence on the basis of irrelevance if it had decided to do so. However, as I read the Board's decision, it did not exclude the evidence. Rather, it considered it and decided not to give any weight to it as it was entitled to do.

46. [40] The causal connection between Ford’s working environment and Mr. Naraine’s discharge was analysed by the Court as follows:

47. Although it is true that Naraine did not directly attribute his altercation with Mena to the "discriminatory environment", in my view the Board was entitled to draw that inference from the totality of the evidence despite the fact that the expert sociologist who gave evidence, Dr. Henry, did not explicitly support this finding. It was not necessary that there be any explicit support for this finding. At paragraph 90, the Board found that "Dr. Henry provided a useful framework for evaluating Mr. Naraine's temperament ..." Its finding on this issue was based on an application of reason and common sense to the totality of evidence and the drawing of appropriate inferences. There was considerable evidence capable of supporting the inference made by the Board.

48. [41] The Divisional Court also upheld the Board’s conclusion that Ford was liable as an employer for the discrimination in its workplace.

ANALYSIS

42. [42] The issue in this appeal is whether, applying Weber v. Ontario Hydro, 1995 108 (SCC), [1995] 2 S.C.R. 929, the Board erred in ordering Mr. Naraine’s reinstatement given the prior arbitral decision upholding his discharge.

43. [43] In my view, the reasons of Professor Backhouse rejecting the application of Weber to this case were correct:

44. Arguments were also addressed regarding the effect of the prior arbitration award in this matter. In April 1986, Arbitrator E.E. Palmer Q.C. considered several grievances under the collective agreement between Ford and the C.A.W., which related to Mr. Naraine's discipline and discharge from Ford. After a one-day hearing, Professor Palmer dismissed two of the three grievances and upheld Mr. Naraine's discharge from employment. Counsel for the Respondents argued that the arbitrator's ruling and findings of fact ought to bind this board of inquiry.

45. In an earlier interim ruling (Naraine v. Ford Motor Company of Canada Ltd. (13 February 1995, unreported) I rejected this argument, holding that the legal questions before each tribunal were not identical and that the parties were different in each proceeding. I did, however, indicate that this board would give due consideration to the findings of the previous arbitration award when assessing the evidence on the whole. After hearing all of the evidence, I have ultimately decided not to rely upon all of the arbitrator's factual findings.

46. Although there is some overlap in the witnesses, this board of inquiry heard from dozens more individuals than appeared before the arbitrator. Several of the witnesses gave evidence before this tribunal which appears to be quite inconsistent with what the arbitrator reported in his decision. The arbitrator did not have the benefit of the experts who appeared in this human rights proceeding. Mr. Naraine was not a party to the arbitration proceeding and had no independent representation at that hearing. Even the union, which was a party to the arbitration, was unrepresented by counsel.

47. In Weber v. Ontario Hydro the majority of the Supreme Court of Canada held that an earlier labour arbitration ruling was dispositive of the tort and Charter actions that the plaintiff sought to bring. This ruling indicates that the courts are quite rightly becoming increasingly concerned about duplicative proceedings in an era of diminishing adjudicatory resources. However, at the time of Mr. Naraine's arbitration, it was not settled as a matter of law that labour arbitrators appointed under the Labour Relations Act had the authority to make rulings under the Human Rights Code. The Labour Relations Act was not amended until 1992 to give arbitrators the express authority to apply the Code. Professor Palmer makes no reference to the Code or to human rights jurisprudence in his award. On the face of the arbitration decision, Professor Palmer explicitly declines to make findings of fact which may have related to the poisoned work environment, because of his view that this is not relevant to the labour law issues before him. Noting that some of the allegations concerned Mr. Naraine's co-workers, Professor Palmer concludes this was outside the scope of his inquiry because they were fellow union-members. In contrast, racial discrimination from co-workers is highly relevant to violations of the Code. For all of these reasons, I have decided not to rely upon all of the arbitrator's findings of fact, but to assess the evidence as a whole.

48. [44] In Weber, the issue was the scope of the arbitrator’s jurisdiction to deal with disputes that arise expressly or inferentially out of a collective agreement. The Supreme Court of Canada found that this jurisdiction was exclusive. McLachlin J. based this conclusion on s. 45(1) of the Ontario Labour Relations Act, which states that every collective agreement shall provide for the final and binding settlement by arbitration of all differences between the parties arising from the interpretation, application, administration or alleged violation of the agreement. At pp. 956-57, she held:

49. On [the exclusive jurisdiction] approach, the task of the judge or arbitrator determining the appropriate forum for the proceedings centres on whether the dispute or difference between the parties arises out of the collective agreement. Two elements must be considered: the dispute and the ambit of the collective agreement.

50. _____ . . .

51. In considering the dispute, the decision-maker must attempt to define its "essential character"... The fact that the parties are employer and employee may not be determinative. Similarly, the place of the conduct giving rise to the dispute may not be conclusive; matters arising from the collective agreement may occur off the workplace and conversely, not everything that happens on the workplace may arise from the collective agreement... The question in each case is whether the dispute, in its essential character, arises from the interpretation, application, administration or violation of the collective agreement.

Because the nature of the dispute and the ambit of the collective agreement will vary from case to case, it is impossible to categorize the classes of case that will fall within the exclusive jurisdiction of the arbitrator. However, a review of decisions over the past few years reveals the following claims among those over which the courts have been found to lack jurisdiction: wrongful dismissal; bad faith on the part of the union; conspiracy and constructive dismissal; and damage to reputation...

This approach does not preclude all actions in the courts between employer and employee. Only disputes which expressly or inferentially arise out of the collective agreement are foreclosed to the courts.

45. [45] The same analysis applies when the jurisdictional conflict is between tribunals. As Bastarache J. stated in Regina Police Assn. Inc. v. Regina (City) Board of Police Commissioner, 2000 SCC 14, [2000] 1 S.C.R. 360 at pp. 373-74:

Before proceeding to an analysis of the ambit of the collective agreement, it is important to recognize that in Weber this Court was asked to choose between arbitration and the courts as the two possible forums for hearing the dispute. In the case at bar, The Police Act and Regulations form an intervening statutory regime which also governs the relationship between the parties. As I have stated above, the rationale for adopting the exclusive jurisdiction model was to ensure that the legislative scheme in issue was not frustrated by the conferral of jurisdiction upon an adjudicative body that was not intended by the legislature. The question,

therefore, is whether the legislature intended this dispute to be governed by the collective agreement or The Police Act and Regulations. . . . [T]he approach described in Weber applies when it is necessary to decide which of the two competing statutory regimes should govern a dispute.

46. [46] To determine whether the arbitrator had exclusive jurisdiction over Mr. Naraine’s human rights complaints, one must therefore consider the essential character of this dispute and where the legislature intended that it be resolved.

47. [47] Human rights legislation has consistently been found to occupy a uniquely protected sphere in the legal orbit. It enjoys quasi-constitutional status and can only be overridden by express and unequivocal legislative language. As Lamer J. observed in Insurance Corp. of British Columbia v. Heerspink, 1982 27 (SCC), [1982] 2 S.C.R. 145 at 157-58:

48. When the subject matter of a law is said to be the comprehensive statement of the "human rights" of the people living in that jurisdiction, then there is no doubt in my mind that the people of that jurisdiction have through their legislature clearly indicated that they consider that law, and the values it endeavours to buttress and protect, are, save their constitutional laws, more important than all others. Therefore, short of that legislature speaking to the contrary in express and unequivocal language in the Code or in some other enactment, it is intended that the Code supersede all other laws when conflict arises.

49. As a result, the legal proposition generalia specialibus non derogant cannot be applied to such a code. Indeed the Human Rights Code, when in conflict with "particular and specific legislation", is not to be treated as another ordinary law of general application. It should be recognized for what it is, a fundamental law.

50. Furthermore, as it is a public and fundamental law, no one, unless clearly authorized by law to do so, may contractually agree to suspend its operation and thereby put oneself beyond the reach of its protection.

(See also University of British Columbia v. Berg, 1993 89 (SCC), [1993] 2 S.C.R. 353, Zurich Insurance Co. v. Ontario (Human Rights Commission), 1992 67 (SCC), [1992] 2 S.C.R. 321, C.N.R. v. Canada (Human Rights Commission), 1987 109 (SCC), [1987] 1 S.C.R. 1114, Ontario (Human Rights Commission) v. Simpsons-Sears Ltd., 1985 18 (SCC), [1985] 2 S.C.R 536, and Winnipeg School Division No. 1 v. Craton, 1985 48 (SCC), [1985] 2 S.C.R. 150).

48. [48] There is jurisprudential and academic support for the conclusion that the legislature did not intend labour arbitrators to have exclusive jurisdiction over human rights issues. In Gendron v. Supply and Services Union, P.S.A.C., 1990 110 (SCC), [1990] 1 S.C.R. 1298 at 1320, for example, the Supreme Court of Canada held, in obiter, that:

49. . . . In other instances, such as in the context of human rights violations, while the statute may apply, the breach may not be properly characterized exclusively as a labour relations matter. In these circumstances jurisdiction may be grounded elsewhere.

50. [49] In Brown and Beatty, Canadian Labour Arbitration, 3rd ed. (2001), at pp. 1-21-22, the authors write:

51. In Ontario, it would appear that the proceedings contemplated by the Labour Relations Act, 1995 and by the other pieces of related legislation are concurrent, and that neither ousts the jurisdiction of the other. … [S]imply because the subject-matter of a grievance might be the subject-matter of a complaint under the Ontario Human Rights Code does not preclude its determination by arbitration, and vice versa.

52. [50] I am also guided by the following excerpt from Driedger on the Construction of Statutes, 3rd ed. (1994), at p. 177:

53. . . . Where two provisions are applicable without conflict to the same facts, it is presumed that each is meant to operate fully according to its terms. So long as overlapping provisions can apply, it is presumed that both are meant to apply. The only issue for the court is whether the presumption is rebutted by evidence that one of the provisions was meant to provide an exhaustive declaration of the applicable law.

54. [51] It is important to keep in mind that the statutory context for Mr. Naraine’s complaints pre-dated both the 1992 amendments to the Labour Relations Act authorizing arbitrators to apply the Human Rights Code in s. 48(12)(j)[^1], and the amendments to the Human Rights Code in s. 34(1)(a)[^2] authorizing the Commission to defer to another tribunal in its discretion.

55. [52] Prior to 1992, there was no legislative language providing labour arbitrators with any jurisdiction over violations of the Code. And the 1992 amendment, which permitted arbitrators to interpret and apply “human rights and other employment-related statutes”, did not provide that the arbitrator’s jurisdiction was exclusive or that the Commission’s jurisdiction was in any way limited.

56. [53] The jurisdictional separation between arbitral and Commission dispute resolution processes, in the scheme in existence when Mr. Naraine brought his complaint and grievance, was described by John I. Laskin in “Proceedings Under the Ontario Human Rights Code” (1980), 2 Advocates Q. 280 at 305 as follows:

57. . . . In grievance proceedings under a collective agreement, an employee (through his union) seeks to vindicate his contractual rights; by contrast, in filing a complaint under the Code, an employee asserts independent statutory rights accorded by the Legislature. The distinctly separate nature of these contractual and statutory rights is not vitiated simply because both were violated as a result of the same factual occurrence. And, arguably, no inconsistency results from permitting both rights to be enforced in their respective forums. It is true that in the result the employer may well have to defend himself before two tribunals. But, presumably, the Legislature at least in part enacted The Ontario Human Rights Code because it believed the grievance-arbitration machinery was not adequate to protect employees from discrimination.

58. [54] Access to the Commission’s broad remedial powers would have been foreclosed to Mr. Naraine if the arbitrator were found to have exclusive jurisdiction. Under s. 41(1) of the Code, a Board of Inquiry can “direct the party to do anything that, in the opinion of the board, the party ought to do to achieve compliance with this Act, both in respect of the complaint and in respect of future practices”. In the absence of legislative language indicating that labour arbitrators had the same broad remedial powers, it could hardly be said that the legislature intended the arbitrator to enjoy exclusive authority over a human rights issue arising from a workplace dispute.

59. [55] On the contrary, it seems to me to be clear that prior to the 1992 amendments giving labour arbitrators concurrent jurisdiction with the Human Rights Commission to apply the Code, it was the Commission that had exclusive jurisdiction to apply it. Arbitrators could undoubtedly deal with grievances under the collective agreement alleging breaches of a non-discrimination clause in the collective agreement, but only the Commission could apply the Code provisions.

60. [56] The current scheme of concurrent jurisdiction was not available to the arbitrator hearing Mr. Naraine’s grievance. In the labour relations/human rights regime existing in 1985 when these complaints were filed, Mr. Naraine did not allege, and could not have alleged, violations of the Code in the arbitration proceeding. Not only was Mr. Naraine entitled to bring his complaint of Code violations to the Human Rights Commission at the time, he had no choice but to do so. It follows that the Commission had jurisdiction to entertain his complaint and process it in accordance with the relevant Code provisions, including determining the merits and the requisite relief.

61. [57] Even if Weber were applicable to the facts and circumstances of this case, a proposition I doubt, the essential character of the dispute before the arbitrator and the one before the Commission were separate and distinct, warranting consideration by separate adjudicative bodies. The essential character of Mr. Naraine’s dispute before the arbitrator related to his discipline and discharge. The essence of the complaint before the Human Rights Commission, which was filed almost simultaneously with the grievance, related to racial discrimination and harassment. As the Saskatchewan Court of Appeal stated in Cadillac Fairview Corp. v. Saskatchewan (Human Rights Code Board of Inquiry) (1999), 1999 12358 (SK CA), 173 D.L.R. (4th) 609 (Sask. C.A.), at pp. 619-23:

62. Weber, in my opinion, did not go so far as to state that any rights created by statute that affect employment rights must of necessity arise out of the collective agreement and can only be dealt with by arbitration. Indeed Gendron v. Supply and Services Union, P.S.A.C., Local 50057 makes it clear there are exceptions as to when exclusive jurisdiction arises under the Canada Labour Code, R.S.C. 1985, c. L-2, when dealing with an issue arising out of a breach of an obligation under the Canadian Human Rights Act, R.S.C. 1985, c. H-6, where there is also a common law duty. In deciding that common law jurisdiction was ousted the Court stated:

63. A different conclusion may also be warranted where it is not clear that the statute exclusively covers the breach. In other instances, such as in the context of human rights violations, while the statute might apply, the breach may not be properly characterized exclusively as a labour relations matter. In these circumstances jurisdiction may be grounded elsewhere.

64. The right which was allegedly violated in this case is a fundamental human right which employees and the union need not bargain and cannot contract out of. … It is a fundamental right which forms part of every employee's contract of employment and is enforceable under the Code. It is a right which would not have existed in the absence of the Code.

65. The Supreme Court of Canada has stated that when human rights legislation comes into conflict with other, more specific legislation, the provisions of the Code prevail. Next to constitutional law, human rights provisions are more important than all other laws. They have been defined as quasi-constitutional rights and statutes. They are not treated as laws of general application but rather as fundamental laws. Unless the legislature has expressly provided otherwise, the Code takes precedence over all other laws when there is a conflict.

66. In my opinion the ambit of the collective agreement does not affect the finding that the essential nature of the dispute is a human rights violation and not one which only involves a dispute by the parties concerning the application, violation or interpretation of the collective agreement. This is particularly evident when one takes into account the public interest component of the complaint as well and the wide powers granted under the Code to redress a violation of the rights guaranteed under the Code, and further to award damages or otherwise resolve the question of compensation for the violation of the guaranteed right.

67. [58] I am therefore of the view that Weber does not apply so as to oust the jurisdiction of the Board in Mr. Naraine’s case. Even now, under the current regime, it seems to me that given the concurrency contemplated by the synchronized discretion provided by s. 34(1)(a) of the Code and s. 48(12)(j) of the Labour Relations Act, Weber is of limited assistance in determining which forum prevails, other than providing conceptual guidance that, to the extent possible, disputes should be resolved in a single proceeding.

68. [59] The Commission now has authority under s. 34(1)(a) of the Code to decide, in its discretion, not to deal with a complaint where it is of the view that the complaint “could or should be more appropriately dealt with” under another Act. Labour arbitrators now have statutory authority under the Labour Relations Act to apply the Code. Since the Commission has statutory authority under the Code to defer to another forum, the legislative intent has clearly shifted from according exclusive jurisdiction to the Commission for Code violations to offering concurrent jurisdiction to labour arbitrators when complaints arise from disputes under a collective agreement.

69. [60] The underlying goal of these symmetrical amendments is to avoid the gratuitous bifurcation or proliferation of proceedings, especially when the arbitrable grievance and the human rights complaint emerge seamlessly from the same factual matrix. That goal was also, I think, at the heart of Weber. In my view, Weber stands for the proposition that when several related issues emanate from a workplace dispute, they should all be heard by one adjudicator to the extent jurisdictionally possible, so that inconsistent results and remedies, such as those in Mr. Naraine’s case, may be avoided.

70. [61] On the other hand, there may be circumstances where an individual unionized employee finds the arbitral process foreclosed, since the decision whether to proceed with a grievance is the union’s and not the employee’s. Moreover, the alleged human rights violation may be against the union, as stipulated in the Code in ss. 6 and 45(1). Section 6 provides that every person has a right to equal treatment with respect to membership in a trade union, and s. 45(1) provides that “any act or thing done or omitted to be done in the course of employment by an officer, official, employee or agent of a trade union is deemed to be an act or thing done or omitted to be done by the trade union”.

71. [62] In an arbitration under a collective agreement, only the employer and union have party status. The unionized employee’s interests are advanced by and through the union, which necessarily decides how the allegations should be represented or defended. Applying Weber so as to assign exclusive jurisdiction to labour arbitrators could therefore render chimerical the rights of individual unionized employees. This does not mean, however, that the availability of jurisdictional concurrency should be seen as encouraging ‘forum’ shopping. The jurisdictional outcome will depend upon the circumstances of each case, including the reasonableness of the union’s conduct, the nature of the dispute, and the desirability of finality and consistency of result.

72. [63] Neither, in my view, can issue estoppel be applied to prevent a consideration of the issues of Mr. Naraine’s complaint. In Danyluk v. Ainsworth Technologies Inc., [2001] S.C.C. 44, Binnie J. defined issue estoppel and outlined the analytic process for deciding whether it applies:

73. Issue estoppel was more particularly defined by Middleton J.A. of the Ontario Court of Appeal in McIntosh v. Parent, 1924 401 (ON CA), [1924] 4 D.L.R. 420 (Ont. C.A.), at p. 422:

When a question is litigated, the judgment of the Court is a final determination as between the parties and their privies. Any right, question, or fact distinctly put in issue and directly determined by a Court of competent jurisdiction as a ground of recovery, or as an answer to a claim set up, cannot be re-tried in a subsequent suit between the same parties or their privies, though for a different cause of action. The right, question, or fact, once determined, must, as between them, be taken to be conclusively established so long as the judgment remains. [Emphasis added.]

71. The preconditions to the operation of issue estoppel were set out by Dickson J. in Angle, supra, [Angle v. Minister of National Revenue, 1974 168 (SCC), [1975] 2 S.C.R. 248] at p. 254:

(1) that the same question has been decided;

(2) that the judicial decision which is said to create the estoppel was final; and,

(3) that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies....

72. _____ . . .

73. The rules governing issue estoppel should not be mechanically applied. The underlying purpose is to balance the public interest in the finality of litigation with the public interest in ensuring that justice is done on the facts of a particular case. (There are corresponding private interests.) The first step is to determine whether the moving party (in this case the respondent) has established the preconditions to the operation of issue estoppel set out by Dickson J. in Angle, supra. If successful, the court must still determine whether, as a matter of discretion, issue estoppel ought to be applied…

74. [64] The preconditions for issue estoppel are not met in this case. The parties to the arbitration were the union and Ford, while the parties to the Board of Inquiry proceeding were the Human Rights Commission, Mr. Naraine, and Ford. Moreover, the proceedings before the arbitration board and Board of Inquiry involved different questions. The question before the arbitrator was whether, under the collective agreement, Ford was justified in discharging Mr. Naraine and ordering twelve-day suspensions for two incidents of verbal insubordination. The question before the Board of Inquiry was whether, under the Ontario Human Rights Code, Ford had discriminated against Mr. Naraine. Further, the arbitrator’s decision did not deal with the human rights issue. The decision considered neither the “no discrimination” clause of the collective agreement, nor human rights jurisprudence or legislation. Indeed, whatever evidence of discrimination the arbitrator did hear was found to be irrelevant to the question before him. Since the arbitrator dealt with different issues and parties, issue estoppel cannot be said to apply to the Board’s decision.

75. [65] I leave for another day the question whether issue estoppel can apply in circumstances where a labour arbitrator has applied the Code and the individual grievor seeks to have the human rights claim reconsidered under the Code. That question raises issues of who is a privy in such circumstances and how the Commission will exercise its discretion under s. 34(1)(a) to prevent duplication and inconsistency.

76. [66] The fact that the Board had jurisdiction to hear and decide Mr. Naraine’s human rights complaint does not, however, end the inquiry. The question remains whether the remedy should, in the circumstances, be set aside. With great respect despite the rigour and jurisprudential fluency of the rest of the reasons in connection with the complaint, in my view the Board’s exercise of discretion in imposing reinstatement, while entitled to considerable deference, cannot be upheld.

77. [67] The parties did not address the issue of the standard of review applicable to the Board’s decision on remedy. In my view, in the circumstances of this case, it is unnecessary for us to consider that issue as the decision to order reinstatement is vulnerable on any standard of review.

78. [68] Several factors militated against reinstatement. The first is Mr. Naraine’s later employment with General Motors and the eleven-year period that had elapsed since his discharge. In addition, although the Board itself expressly stated in its interim decision that it would “take appropriate account of the delay when it comes to weighing the evidence and fashioning the remedy”, its decision on remedy does not appear to reflect any such consideration.

79. [69] Moreover, the Board’s decision on remedy appears to be internally inconsistent. The Board found that Mr. Naraine was entitled to special damages for back pay and benefits, but extended this entitlement only until he started working for General Motors, concluding that Ford’s liability to Mr. Naraine “terminated” at that time. For ease of reference, the Board’s reasons on the extent of Ford’s liability are repeated here:

80. Counsel for the Complainant requested compensation for back pay (including overtime and credit for vacation days) to the date of reinstatement, less any mitigated earnings. They also requested the reinstatement of Mr. Naraine's seniority and pension to date continuously from the time of his original hire to the present. Counsel for the Commission sought back pay only to the date of Mr. Naraine's hiring at General Motors in the spring of 1987. The Commission indicated that this constituted comparable employment and terminated Ford's liability. Respondent's counsel also argued that any liability on the part of his client was severed upon Mr. Naraine's hiring at General Motors.

81. In the circumstances of this case, the appropriate order is for back-pay only up to the date that Mr. Naraine obtained employment with General Motors. Mr. Naraine was under a legal obligation to mitigate his losses, which he did. When he secured a position as an electrician at General Motors, this constituted comparable employment and terminated the Respondent's continuing liability. The fact that Mr. Naraine was discharged from General Motors in the spring of 1989 does not reactivate Ford's liability. Counsel for the Complainant argued that the circumstances of Mr. Naraine's termination at General Motors also centred around complaints of racism in the plant. This too, does nothing to reactivate Ford's liability for back-pay. Mr. Naraine brought a separate human rights complaint against General Motors, a proceeding which was settled between the Complainant and his employer before it got to adjudication. Whatever losses Mr. Naraine experienced pursuant to his claims against General Motors were resolved with the final and binding settlement he signed then. These losses cannot be mobilized afresh and drawn back retroactively into the present proceeding. [Emphasis added]

82. [70] There is an established line of arbitral jurisprudence that a subsequent job does not necessarily preclude reinstatement to a former one. (See Torbridge Construction Ltd., [1997] OLRB Rep. July/August 751 (Surdykowski); E & L Catering and Services Employees Union, Loc, 478 Re (1992), 1992 14534 (ON LA), 27 L.A.C. (4th) 129 (Solomatenko, Vorster), Chromalox Inc. and C.A.W., Re (1991), 1991 13480 (ON LA), 17 L.A.C. (4th) 318 (Brown), Samuel John Snively, complainant, and CAN-AM Services & United Truck Rental, Windsor, Ontario, respondent (1985), 12 CLRBR (NS) 97 (Keller), Re Dover Corporation (Canada) Ltd., Turnbull Elevator Division and International Association of Machinists, Elevator Lodge 1257 (1980), 1980 4084 (ON LA), 26 L.A.C. (2d) 7 (Brunner, Wren, Cook), Re Dominion Stores Ltd. and Retail, Wholesale & Department Store Union, Local 414 (1976), 1976 2168 (ON LA), 12 L.A.C. (2d) 315 (O’Shea, Reekie, White).

83. [71] However, the Board’s finding that Mr. Naraine’s employment at General Motors “terminated” Ford’s continuing liability is inconsistent with its reinstatement order. If Ford’s obligations to Mr. Naraine terminated at that point, then Ford could have no ongoing obligation to restore his employment.

84. [72] Finally, while the Board was not bound by the prior decision of the arbitrator upholding the discharge, it ought to have given it more serious weight and consideration. The labour arbitrator found that Mr. Naraine’s conduct justified his dismissal. On its face, this finding was tenable and no judicial review of the decision was taken. This factor, combined with the very significant delay from the date of discharge to the date of the Board’s decision on remedy and the Board’s conclusion that Ford’s remedial exposure in this case ended with Mr. Naraine’s hiring by General Motors, lead me to conclude that reinstatement should not have been ordered.

85. [73] This does not in any way diminish the severity of the findings against Ford reflected in the rest of the relief awarded by the Board of Inquiry. Rather, it reflects the fact that the inordinate passage of time, the Board’s own remedial analysis, and its lack of consideration of the arbitrator’s decision argue against the imposition of the remedy of reinstatement in these circumstances.

CONCLUSION

74. [74] I would therefore allow the appeal, set aside the decision of the Divisional Court with respect to the remedy of reinstatement, and set aside the Board of Inquiry’s order reinstating Mr. Naraine. In all other respects, the Board of Inquiry’s order is sustained. In the circumstances of this case, I would make no order as to costs.

RELEASED: December 14, 2001 “MAC” “R.S. Abella J.A.”

“I agree: M. A. Catzman J.A.”

“I agree Robert J. Sharpe J.A.”

[^1]: 48. (12) An arbitrator or the chair of an arbitration board, as the case may be, has power,

(j) to interpret and apply human rights and other employment-related statutes, despite any conflict between those statutes and the terms of the collective agreement.

[^2]: 34. (1) Where it appears to the Commission that,

(a) the complaint is one that could or should be more appropriately dealt with under an Act other than this Act;

the Commission may, in its discretion, decide not to deal with the complaint.