The case, Manhas v. A.O. Smith Enterprises, considered whether to permit the employee to proceed with his human rights application following the dismissal of his discharge grievance by an arbitrator.
There were two issues before the Tribunal:
- Did section 45.1 of the Human Rights Code apply? Section 45.1 authorizes the Tribunal to dismiss the application, in whole or in part, "if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.
- Whether allowing the application to continue in the face of the decision of the arbitrator was an "abuse of process" under the Statutory Powers Procedures Act?
As will be seen, arguing these in the alternative was the way to go.
In deciding whether or not to dismiss an application under section 45.1 of the Code:
"... the Tribunal looks at 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 essentially the same, and whether the matter raised was “appropriately dealt with” in the other proceeding."
In this case, the human rights complaint arose out of the same facts that were considered in the arbitration proceeding, However, there were no allegations of discrimination on the basis of a disability before the arbitrator. Accordingly, the arbitrator never considered whether the discharge was discriminatory and contrary to the Code or collective agreement and the Tribunal could not conclude that the arbitrator had "appropriately dealt with the substance of the application” before the Tribunal. As such, section 45.1 didn't result in the dismissal of the application.
Abuse of Process
The Tribunal discussed the rationale behind dismissing complaints as an abuse of process and considered the Supreme Court of Canada case of Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44 (CanLII), 2001 SCC 44 (Can Lll):
The law rightly seeks a finality to litigation. To advance that objective, it requires litigants to put their best foot forward to establish the truth of their allegations when first called upon to do so. A litigant, to use the vernacular, is only entitled one bite at the cherry … An issue, once decided, should not generally be re-litigated to the benefit of the losing party and the harassment of the winner. A person should only be vexed once in the same cause. Duplicative litigation, potential inconsistent results, undue cost, and inconclusive proceedings are to be avoided.
The Tribunal went on to look at the arbitrator's decision and concluded that:
The arbitration process in this case thoroughly explored and decided the issue of the applicant’s termination from employment. The arbitrator found that the breach of the workplace policies and rules supported the employer’s decision to terminate the applicant. The facts about the applicant’s status as an injured worker requiring accommodation were before the arbitrator. The applicant, however, did not raise any allegations of discrimination in relation to those facts.Although I cannot conclude that the arbitrator dealt with any claims of discrimination under section 45.1, I am satisfied that there were no facts set out in this Application that were not put before the arbitrator and that there was a full inquiry into all the relevant facts. Therefore, allowing the Application to proceed would necessarily involve the re-litigation of the issue decided by the arbitrator. In my view, to do so would violate the principles of judicial economy and the integrity of the administration of justice and amount to an abuse of process. [emphasis added]
The fact that the arbitrator did not consider the issue before the Tribunal was not fatal so far as the "abuse of process" argument was concerned despite the fact that it was fatal to the section 45.1 argument.
