|
Human Rights (Ont) - Bhadauria - Labour Relations Act. Li v. University of Windsor
In Li v. University of Windsor (Div Ct, 2026) the Divisional Court dismissed an HRTO JR, here where the human rights issues were - or could have been - raised before the labour arbitrator (this strikes me as akin to civil litigation issue estoppel principles where issues that could have been raised, but weren't, are later barred from being re-raised):[1] The HRTO Vice Chair provided detailed and thorough reasons for his decision to dismiss Mr Li’s complaint on the basis that his claims of discrimination had been or could have been raised in proceedings before Arbitrator Bloch. We see no error in the Vice Chair’s decision; certainly it is reasonable.
[2] Mr Li focused his submissions on his grievance respecting his job description, which he says was not decided by Arbitrator Bloch and has never been decided. The HRTO concluded that the Applicant’s job description issues were effectively addressed in the Arbitrator’s decision, at least insofar as they relate to the Applicant’s claims that he was discriminated against contrary to the Human Rights Code. Even if the HRTO’s decision on this factual point was in error – and we are not persuaded that it was – it would make no difference to the disposition of the HRTO complaint.[1] If the Applicant still has an outstanding grievance respecting his job description issues, his remedy is to pursue the outstanding grievance (if it is outstanding), or to pursue a claim against his union for failing to pursue that grievance. Either process would proceed under the framework of the Collective Agreement.
[3] It is generally undesirable to bifurcate issues arising in a labour law context, and the HRTO’s conclusion to this effect, in this case, is supported by decades of authority from the HRTO and the sound policy of disposing of all related matters through one conflict resolution process. In this instance, the issues before the Arbitrator included determining the classification of Mr Li’s work to award “points” to establish his pay grade. Determining how Mr Li’s work compared to the work of others was inherent in this task and implicitly addressed Mr Li’s concerns that the University had not fairly compared him to other workers – the root of the alleged discrimination. To the extent to which – in Mr Li’s eyes – the Arbitrator’s decision adopted discriminatory treatment, recourse would be by way of judicial review of the Arbitrator’s decision and not proceedings before the HRTO.
[4] Subsequent to the hearing, Mr Li emailed the court seeking to make further submissions. We denied this request. Parties may not make submissions on an appeal after the hearing is concluded without permission from the panel, and no further submissions were required for this court to decide this case.
[5] The application is dismissed. . City of Toronto v. Canadian Union of Public Employees
In City of Toronto v. Canadian Union of Public Employees (Div Court, 2023) the Divisional Court considered the initial onus for a finding of discrimination, here in a JR of a labour arbitrator's decision:[19] In order to demonstrate a prima facie case of discrimination under the Code, a complainant need only establish the following: (1) that they are a member of a group protected by the Code; (2) that they were subjected to adverse treatment; and (3) that the protected ground was a factor in the alleged adverse treatment: Shaw v. Phipps, 2010 ONSC 3884, 325 D.L.R. (4th) 701, at para 47.
[20] It has long been held that intention is not a required element of discrimination under the Code: Ont. Human Rights Comm. v. Simpsons-Sears, 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536, at p. 549; Peel Law Association v. Pieters, 2013 ONCA 396, 116 O.R. (3d) 81, at paras. 111-12; Phipps, at para. 76. The focus is instead on the impact on the individual, regardless of any discriminatory intent or motive. It is also unnecessary to show direct evidence of discrimination; discrimination may be proved by circumstantial evidence and inference: Pieters, at paras. 111-12. . CTS (ASDE) Inc. v. Labourers’ International Union of North America et al
In CTS (ASDE) Inc. v. Labourers’ International Union of North America et al (Div Court, 2023) the Divisional Court cites statutory authority from the Labour Relations Act (OLRB) that the Board may apply human rights law:[33] The Board is specifically authorized under s. 133 of the Act (which incorporates s. 48(12))(j)) to apply human rights statutes. It has considerable experience in doing so in the context of allegations of unjust dismissal. ASDE has not demonstrated that the Board’s factual findings or conclusion of discrimination warrant interference by this Court
|
