Bello v. Toronto Transit Commission, 2014 ONSC 5535
CITATION: Bello v. Toronto Transit Commission, 2014 ONSC 5535
DIVISIONAL COURT FILE NO.: 310/13
DATE: 20140923
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
SACHS, HARVISON YOUNG AND GRACE JJ.
BETWEEN:
ROYE BELLO
Applicant
– and –
TORONTO TRANSIT COMMISSION, AMALGAMATED TRANSIT WORKERS UNION, LOCAL 113, and ONTARIO HUMAN RIGHTS TRIBUNAL
Respondents
Ernest J. Guiste, for the Applicant
Steve Lavander, for the Respondent, Toronto Transit Commission
Katherine S. N. Rowen¸ for the Respondent, Amalgamated Transit Workers Union, Local 113
Brian A. Blumenthal, for the Respondent, Human Rights Tribunal of Ontario
HEARD at Toronto: September 23, 2014
SACHS J. (orally)
[1] This is an application for judicial review of two decisions by the Human Rights Tribunal of Ontario (the “Tribunal”) dismissing two complaints made by the applicant – one against his employer, Toronto Transit Commission (“TTC”) and one against his bargaining agent, Amalgamated Transit Workers Union, Local 113 ( the “Union”).
[2] The applicant’s employment with the TTC was terminated on October 26, 2011. The Union grieved his dismissal and that grievance was resolved through mediation. A memorandum of settlement and release (the “Settlement Agreement”) was executed by all parties, including the applicant, that included a clause making it clear that the agreement was in full settlement of all of the issues between the applicant, the Union and the TTC. The clause also stipulates that the applicant could not make any further claims or applications of any kind, including an application under the Human Rights Code.
[3] After the settlement agreement was signed, the applicant filed an application under the Code alleging discrimination by the TTC with respect to employment because of race, colour, ancestry, place of origin and ethnic origin (the “TTC Application”).
[4] At the request of the TTC, after notice to the applicant and after receiving submissions from the applicant, the Tribunal summarily dismissed the TTC application on the basis that the subject matter of the application had been dealt with in other proceedings, namely the grievance procedure and its resolution through the settlement agreement.
[5] The applicant applied for a reconsideration of that decision. That request was denied.
[6] The applicant also filed an application under the Code alleging that the Union treated him in a discriminatory manner (the “Union Application”).
[7] After notice to the applicant and after hearing from the parties to the application, the Tribunal dismissed the application on the basis that it had no reasonable prospect of success. In particular, the Tribunal found that the applicant had provided no particulars to support his assertions that the Union had discriminated against him on a prohibited ground under the Code. The applicant applied for a reconsideration of that decision, which request was also denied.
[8] On this application for judicial review, the applicant alleges that the Tribunal’s manner of adjudicating both his human rights applications deprived him of natural justice and fairness. He also alleges that in dismissing the applications, the Tribunal ignored and misapprehended evidence.
[9] To the extent that this application rests on allegations of lack of procedural fairness, no standard of review analysis is necessary (Audmax v. HRTO, 2011 ONSC 315).
[10] To the extent that the applicant challenges the Tribunal’s conclusions, the standard of review is reasonableness (Toronto City Police Service v. Phipps, 2012 ONCA 155).
[11] With respect to the procedural complaints, it is important to note that s. 40 of the Code gives the Tribunal broad discretion to adopt procedures and practices that “in its opinion offer the best opportunity for a fair, just and expeditious resolution of the merits of the issue.” Section 43(2) of the Code provides that the Tribunal shall not finally dispose of an application without affording all parties the opportunity to make oral submissions.
[12] The procedures used in both applications were authorized under the Code and the Tribunal’s rules. The applicant was given the opportunity to make oral submissions before the applications were finally disposed of.
[13] With respect to the TTC application, the applicant alleges that the Tribunal should have had a full oral hearing to determine whether he did comprehend the settlement agreement when he signed it and whether he was acting under duress at the time he signed it. In this regard, the applicant acknowledges that he did not raise the language comprehension issue in his TTC application, but he states that it was raised in the Union application and those allegations should have been considered by the Tribunal before it dismissed his application on the basis of the settlement agreement.
[14] To the extent that the application is submitting that the Tribunal breached the rules of natural justice and procedural fairness by dismissing the TTC complaint without a full oral hearing, we reject that argument. As already indicated, the legislature has given the Tribunal broad discretion to control its own procedures and practices (Section 40 of the Code). The procedure used was specifically authorized by the Code (See s. 45.1) and the Rules, (see Rule 8.2).
[15] The applicant was given notice of the fact that the procedure was going to be employed and was given a full opportunity to file material and make submissions, both orally and in writing.
[16] To the extent that the applicant’s arguments are directed at the merits of the Tribunal’s decision, the applicant must satisfy us that the Tribunal’s decision was unreasonable.
[17] There is no basis for the applicant’s submission that the Tribunal unreasonably ignored the allegations from his Union application on the language issue when it adjudicated the TTC application. In paragraph 17 of its decision on the TTC application, the Tribunal makes it clear that it considered “all of the evidence on file” including the interactions between the applicant and the Union and found that it was not satisfied that the applicant did not understand the settlement agreement when he signed it. This was a finding that they were entitled to make on the record before it and the applicant has not pointed us to any evidence that the Tribunal either misapprehended or ignored in making this finding.
[18] The applicant argues that the Tribunal acted unreasonably in dismissing the TTC application without having before it a copy of his termination grievance and a copy of the settlement agreement. The record before us makes it clear that a copy of the settlement agreement was filed and considered by the Tribunal.
[19] While the applicant asserts that a copy of the termination grievance should have been placed before the Tribunal, he has failed to offer any explanation for why he did not place it before the Tribunal if he thought it was relevant and important and he has also failed to point out, how, not having a copy of the actual grievance (as opposed to the summary of the grievance particulars that the Tribunal did have) would have impacted on the Tribunal’s consideration of the issue it had to consider under s. 45.1 of the Code, namely, whether the application should be dismissed because the applicant had settled his grievance and that settlement included a clause prohibiting the applicant from making any further claims against the TTC in relation to his termination, including a claim under the Code.
[20] With respect to the issue of duress, the Tribunal considered the applicant’s submissions on this issue in light of the relevant authorities and concluded that there was no evidentiary basis for a finding of duress, as that term has been interpreted in the case law.
[21] The Tribunal’s analysis on the duress issue makes it clear that it was alive to the applicant’s allegation that he had language limitations that affected his participation in the grievance process and his comprehension of the settlement agreement when he signed it.
[22] In our view, the Tribunal’s analysis and conclusions on this issue were reasonable.
[23] Turning to the Union application, the applicant argues that the Tribunal erred when it dismissed this application at the pleadings stage. This argument misapprehends the procedure that was actually employed – a procedure that is authorized by the Code and Rule 19A of the Tribunal’s rules.
[24] As part of this procedure, the applicant was invited to file any additional materials outlining the evidence that he had or could obtain to support his allegations that the Union’s treatment of him was discriminatory under the Code.
[25] The procedure employed was a procedure that is more analogous to a summary judgment motion procedure than a pleadings motion procedure.
[26] The applicant did not file any material, except for his initial application until filing two uninvited letters after the completion of the summary hearing on March 8, 2013.
[27] The Tribunal considered the applicant’s submissions and at paras. 12 and 13 of its decision concluded as follows:
- As the Tribunal noted in Forde v. Elementary Teachers’ Federation of Ontario, 211 HRTO 1389, at para. 17:
The Tribunal does not have the power to deal with general allegations of unfairness. For an Application to continue in the Tribunal’s process, there must be a basis beyond mere speculation and accusations to believe that an applicant could show discrimination on the basis of one of the grounds alleged in the Code or the intention by a respondent to commit a reprisal for asserting one’s Code rights.
- In this Application the applicant provides details surrounding each incident of discipline and then repeatedly asserts his belief that the respondents discriminated against him on the prohibited grounds noted above. At no point does he provide particulars to support these assertions. He does not identify any specific incidents, statements or documents that might provide an evidentiary foundation sufficient to move his Application beyond mere speculation and unsupported accusations of discrimination. For these reasons the Application is dismissed.
[28] This conclusion was a reasonable one.
[29] The applicant also makes allegations that the Tribunal’s decisions, particularly the reconsideration decisions, were “conclusory” and “arbitrary”. We see no merit to this submission.
[30] While not pursued in oral argument, we also wish to make it clear that there is no merit to the applicant’s suggestion that the Tribunal’s processes or decisions raised any concerns about bias.
[31] For these reasons, the application is dismissed.
COSTS
[32] I have endorsed the back of the Application Record, “This application is dismissed for reasons given orally. As the successful parties, the respondents are entitled to their partial indemnity costs. The Tribunal is not seeking any costs. We fix the total costs payable at $8,000 all inclusive, $4,000 to the TTC and $4,000 to the Union. In view of the applicant’s circumstances these costs will be payable within 6 months of today’s date.”
SACHS J.
HARVISON YOUNG J.
GRACE J.
Date of Reasons for Judgment: September 23, 2014
Date of Release: September 29, 2014
CITATION: Bello v. Toronto Transit Commission, 2014 ONSC 5535
DIVISIONAL COURT FILE NO.: 310/13
DATE: 20140923
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
SACHS, HARVISON YOUNG AND GRACE JJ.
BETWEEN:
ROYE BELLO
Applicant
– and –
TORONTO TRANSIT COMMISSION, AMALGAMATED TRANSIT WORKERS UNION, LOCAL 113, and ONTARIO HUMAN RIGHTS TRIBUNAL
Respondents
ORAL REASONS FOR JUDGMENT
SACHS J.
Date of Reasons for Judgment: September 23, 2014
Date of Release: September 29, 2014