HUMAN RIGHTS TRIBUNAL OF ONTARIO

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B E T W E E N:

2010 HRTO 2046 (CanLII)

Benqi Wei
Applicant

-and-

Seneca College of Applied Arts and Technology

and Don Forster

Respondents

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DECISION
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Adjudicator: Ena Chadha

Date: October 7, 2010

File Number: TR-0649-09

Citation: 2010 HRTO 2046

Indexed as: Wei v. Seneca College of Applied Arts and Technology

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 WRITTEN SUBMISSIONS BY

)
Benqi Wei, Applicant ) Self-represented

2010 HRTO 2046 (CanLII)

)

)
Seneca College of Applied Arts and Technology ) Ann Burke, Counsel
and Don Forster, Respondents )
[1] The applicant filed an Application under s. 53(5) of the Human Rights Code,
R.S.O. 1990, c. H.19, as amended (the “Code”) on June 20, 2009. The applicant
alleges discrimination with respect to employment on the basis of disability, ancestry,
place of origin, ethnic origin and race.

2010 HRTO 2046 (CanLII)

[2] The allegations contained in the Application all arise out of workplace disputes
between the applicant and the respondents. These disputes gave rise to seven
grievances which were heard over the course of eighteen days by a board of arbitration
chaired by Robert Howe. Eleven witnesses, including the applicant’s physician, testified
in the arbitration proceeding and a lengthy Board of Arbitration Decision (“Arbitration
Decision”) was rendered on February 10, 2010.

[3] On March 25, 2010, the respondents filed a Request that the Tribunal dismiss
the Application pursuant to section 45.1 of the Code on the basis that another
proceeding has appropriately dealt with the subject-matter of the Application.

[4] The Tribunal has received and carefully reviewed the respondents’ written
submissions of April 21, 2010 and July 6, 2010 and the applicant’s written submissions
of June 25, 2010 and July 10, 2010.

[5] By letters, dated August 17, 2010 and September 15, 2010, the parties waived
their right to make oral submissions and confirmed that they relied upon their written
submissions with respect to the section 45.1 issue.

BACKGROUND

[6] The applicant alleges that the respondents subjected him to harassment and
discrimination, starting in August 2006, in the form of unequal work, unfair treatment
regarding equipment usage, undue discipline, provision of inadequate of training, over
scrutiny of medical notes and failure to accommodate his disability.

[7] The respondents submit that the Application and Arbitration Decision arise from
the same facts and that the human rights allegations constitute the substance of the
applicant’s grievances. The respondents submit that the human rights issues were
central to the arbitration proceeding. The respondents point out that the Arbitration
Decision noted that the applicant, himself, acknowledged that the human rights
allegations and grievances were “mostly similar”. The respondents submit that the

2010 HRTO 2046 (CanLII)

human rights issues were appropriately dealt with by the Arbitration Decision, which
rejected the applicant’s allegations.

[8] The applicant submits that he is “not satisfied” with the arbitrator’s decision and
does not accept the decision because the arbitrator disregarded the “true facts” of his
case and made errors in the decision. The applicant submits that the arbitrator erred in
believing the testimony of the personal respondent over his evidence which he claims
was not contradicted. The applicant points out that one member of the Board of
Arbitration dissented with respect to finding that a penalty imposed by the employer
exceeded the alleged misconduct. The bulk of the applicant’s written submissions
argue the merits of his allegations underlying his Application and grievances.

DECISION

[9] Section 45.1 of the Code provides as follows:

The Tribunal may dismiss an application, in whole or in part, in

accordance with its rules if the Tribunal is of the opinion that another
proceeding has appropriately dealt with the substance of the application.

[10] The Tribunal has interpreted section 45.1 of the Code as requiring consideration
of a two-part test: (1) whether there was another “proceeding”, and (2) if so, whether the
proceeding “appropriately dealt with” the substance of the Application. The Tribunal’s
jurisprudence has explained that section 45.1 gives expression to a legislative intent to
avoid the duplication of proceedings and the re-litigation of issues that have been dealt
with elsewhere. See Campbell v. Toronto District School Board, 2008 HRTO 62
(CanLII).

[11] I am satisfied that a hearing conducted by the Board of Arbitration is a

proceeding for the purposes of section 45.1 of the Code. The Supreme Court of Canada
has affirmed that grievance arbitrators have not only the power but also the
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responsibility to implement and enforce the substantive rights and obligations of human
rights statutes as if they were part of the collective agreement (Parry Sound (District)
Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42 (CanLII)).

2010 HRTO 2046 (CanLII)

[12] With regard to whether the other proceeding “appropriately dealt with” the
substance of the application, the Tribunal may consider whether the application arises
from the same facts that provided the basis for the other proceeding, whether the
substance of the issues raised in each forum was substantially the same, and whether
the matter raised was “appropriately dealt with” in the other proceeding: Keeling v.
General Motors of Canada Ltd., 2009 HRTO 1110 (CanLII). The principal concern
relates to whether or not the applicant has already had a full and fair opportunity to have
the human rights claim considered by an adjudicator who had the jurisdiction to interpret
and apply the Code: Haykin v. Roth, 2009 HRTO 2017 (CanLII).

[13] Based on my review of the Arbitration Decision and the parties’ submissions,
there is no doubt that allegations raised in the Application were the same as those
considered in the arbitration proceeding. This has been acknowledged by the applicant,
who essentially debates the conclusions reached in the Arbitration Decision. Each of the
applicant’s claims of unequal work, unfair treatment regarding equipment usage, undue
discipline, provision of inadequate of training, over scrutiny of medical notes and failure
to accommodate his disability were considered and determined in the Arbitration
Decision. The Arbitration Decision found:

…on the totality of the evidence that those allegations are not borne out by
the facts and circumstances of case. Although we have no doubt that the
[applicant] honestly believes that [the respondents] were harassing him
and treating him in a discriminatory manner, the preponderance of the
evidence before us in these proceedings clearly establishes that [the
respondents] were merely seeking to duly manage the [applicant’s] job
performance, so as to ensure that he performed his job properly, with due
regard for safety considerations.

It is noteworthy that a significant portion of the Arbitration Decision canvasses the

applicant’s medical history and the medical evidence in the context of considering the
employer’s obligation to provide accommodation.

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[14] It is also important that when the Tribunal considers whether another proceeding
applied the relevant human rights principles that it does not, as stated in Rao v.
McMaster University, 2010 HRTO 1051 (CanLII) and Trozzi v. College of Nurses of
Ontario, 2010 HRTO 1892 (CanLII), go so far as to consider whether the conclusion

2010 HRTO 2046 (CanLII)

reached by the other proceeding upon application of those principles and law is correct
or reasonable as this would effectively serve as an appeal. In my view, the Arbitration
Decision appropriately assessed the applicant’s human rights claims and determined
that the applicant’s discrimination and harassment allegations were not proven.

[15] For the purposes of section 45.1, I find that nothing turns on the fact that one
member of the Board of Arbitration arrived at a different conclusion with respect to one
aspect of the applicant’s grievances regarding the severity of discipline. That member
clearly expressed her agreement with the bulk of the majority’s findings and found the
applicant to have engaged in culpable behaviour and infractions attracting some
discipline. It is apparent that the applicant had full opportunity to present, argue and
have adequate consideration of his human rights allegations.

[16] I find that the substance of the human rights allegations and human rights
principles raised in the Application were appropriately dealt with in the arbitration
proceedings and by the Arbitration Decision within the meaning of section 45.1 of the
Code. As such, the request for dismissal under section 45.1 is granted.

[17] The Application is dismissed.

Dated at Toronto, this 7th day of October, 2010.

“Signed by”

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Ena Chadha
Vice-chair