Wednesday, April 10, 2013

Ontario's Fixation on Finality Unfairly Hurting Employees

     Once upon a time a dismissed employee who was not provided pay in lieu of notice had a right to file a complaint with the Employment Standards Branch of the Ontario Ministry of Labour and later bring a civil action for wrongful dismissal. In the human rights area a unionized employee whose rights under the Human Rights Code were violated by the employer or bargaining agent could find refuge at the Ontario Human Rights Commission.  Those rights or avenues for redress have been abolished. 

     It all started with a judgement by the Court of Appeal for Ontario - Rasanen  v.  Rosemount Instruments Limited (1993) (Ont.C.A.)  In Rasenen (supra) the employer was restructuring its operation and offered Mr. Rasenen two alternatives - a relocation to Calgary at the same status and pay or stay in Toronto in a lower status job with potentially higher pay - as the second job involved some commissions.  Mr. Rasenen rejected both options and resigned claiming constructive dismissal.  He then filed a claim for termination pay with the Ministry of Labour.  That claim ultimately went to a hearing where the Adjudicator ruled against him finding that he was not entitled to termination or severance pay because he resigned. 

     The majority in Rasenen (supra)  - Madame Justice Abella and Associate Chief Justice Morden, as he was then, ruled to dismiss the plaintiff, Mr. Rasanen's case, on the basis of issue estoppel.  Mr. Justice Carthy, who also dismissed the appeal, determined that issue estoppel did not apply in the circumstances but found that in the circumstances of the case the plaintiff was not contructively dismissed.  Mr. Justice Carthy's ruling and analysis rejecting the application of issue estoppel mirrors the fairness concerns expressed by the Supreme Court of Canada in Penner  v.  Niagara Region Police Service. 

     The Rasenen ruling put a clear chill in employees to make use of the remedial legislation which their elected officials had passed to provide them with basic terms and conditions of employment.  Fewer and fewer employees looked to the Ministry of Labour and elected to sue for wrongful dismissal.  Surprisingly, the Supreme Court of Canada makes note of this phenomenon in Penner  v.  Niagara Region Police Service.

The Codification of Issue Estoppel:

Employment Standards Act

     As if Rasanen was not bad enough the Ontario Government went on to amend the Employment Standards Act and the Human Rights Code to incorporate issue estoppel-type provisions.  The Employment Standards Act actually prohibits employees who bring a claim for termination pay etc. under the Act to bring a civil action seeking a remedy for the same dismissal.(see s.97(2))  In addition, the Act expressly provides that once an employee brings a claim under the Act they can only withdraw same within two weeks of the filing of the complaint. (see s.97(4))

Human Rights Code

     The amendments to the Human Rights Code incorporating issue estoppel-type provisions appear to be motivated by a desire for finality in legal proceedings.  Whether intentional or otherwise they appear to be depriving a significant group of workers their rights in both the collective bargaining forum and their stututory rights under the Human Rights Code.  Collective agreements are between a bargaining agent/union and an employer.  Accordingly, when a union and an employer make a "sweet-heart deal" to "resolve all of an employees grievances" they do not typically need the workers consent.  The worker, whose grievance has not been dealt with, then tries to bring a human rights complaint and is confronted by the following statutory provision:

"s.45.1 - The Tribunal may, in whole or in part, dismiss with an appllication in accordance with its Rules, if in its opinion, another proceeding has appropriately dealt with in the substance of the application."

     The legal effect of this statutory provision for workers covered by collective agreements is to render what ever individual rights they may have under the Human Rights Code purely illusory.  They have rights on paper but not in reality.  Our lawmakers have made the employer and the unions the gatekeepers of those rights.  They are at liberty to dispense them as they see fit.  Put another way - a worker with a human rights-type grievance has no rights that an employer or a union must respect and good luck taking the issue to the Divisional Court.  I invite readers to review the decisions of the HRTO involving unionized workers and their human rights complaints and any judicial review applications on this subject at our Divisional Court. The consistency of the dismissal of these complaints is troubling to say the least.




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