Passmore v. P & H Foods, 2008 HRTO 369

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kathie Passmore

Applicant

-and-

P & H Foods, Katherine Johnstone and Karen Krauter

Respondents

-and-

United Food and Commercial Workers Canada, Local 175

Intervenor

INTERIM DECISION

Adjudicator: Alison Renton

Date: December 5, 2008

Citation: 2008 HRTO 369

Indexed as: Passmore v. P & H Foods

INTRODUCTION

1This is an Application filed September 15, 2008 under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”). The purpose of this Interim Decision is to consider the Request to Intervene made by the applicant’s union, United Food & Commercial Workers of Canada Local 175 (“the union”), to consider the respondents’ and union’s requests for early dismissal of the Application because minutes of settlement that resolved the applicant’s grievances contained release language, and the respondents’ alternative position that it would request early dismissal of the Application under section 45.1 of the Code because of another proceeding.

2In this Application, the applicant alleges discrimination in employment on the basis of disability by P&H Foods (“the corporate respondent”). She alleges that because of her disability she has been harassed by her co-workers, Kathy Johnstone and Karen Krauter (“the personal respondents”). The union is the bargaining agent for employees in the applicant’s workplace, including the personal respondents. The Tribunal gave notice of the Application to the union.

REQUEST TO INTERVENE

3The union seeks to intervene in accordance with Rule 11 of the Tribunal’s Rules of Procedure. The applicant filed a Reply but did not address the union’s Request to Intervene. The respondents did not make submissions on this issue and the deadline for doing so has now passed.

4The union represented the applicant in grievances that are referenced in the Application and the respondents’ responses. It has a significant interest in the outcome of the Application, including the remedial orders requested by the applicant. The union’s request to intervene is granted.

EARLY DISMISSAL OF THE APPLICATION

Release

5The respondents state that the applicant, through the union, filed three grievances (one dated March 3, 2008 and two dated July 3, 2008) based on the same issues as those raised in the Application. The respondents state that the March 3, 2008 grievance was withdrawn in writing by the applicant and the union (“the withdrawal”) and the two July 3, 2008 grievances were settled pursuant to minutes of settlement dated August 29, 2008 (“the settlement”). The settlement, which appears to have been signed by the applicant, the union and the employer, contains release language.

6The respondents ask for early dismissal of this Application without a full response on the basis of the withdrawal and the release language in the settlement. Similarly, the union claims the applicant is barred from bringing forward her Application because of the withdrawal and the settlement.

Another Proceeding

7The respondents state that on August 29, 2008 the applicant signed a mediated return to work agreement facilitated by a representative of the Workplace Safety Insurance Board (the “WSIB”). At paragraph 10 of the corporate respondent’s response, it states that the request for early dismissal on the basis of the release “…is made without prejudice to the alternative request that would be made for early dismissal of the application on the basis that it [the subject matter of the Application] has been appropriately dealt with in another proceeding”. The respondents did not set out their position or submissions on this alternative ground. They requested the Tribunal first address the early dismissal because of the release and stated that they reserved their right to make submissions on the alternative position following the Tribunal’s determination on the release issue.

8Section 45.1 of the Code provides:

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.

DECISION

9In the circumstances, it is appropriate to determine the respondents’ and union’s request for an early dismissal of the Application because of the release language as a preliminary matter.

10It is also appropriate to consider, at this time, the respondents’ alternative position, based upon section 45.1 of the Code as a preliminary matter to ensure a fair, just and expeditious resolution of the Application.

11If the respondents intend to pursue this alternative position, they are directed to set out their position in writing and deliver it to the other parties and file it with the Tribunal within fourteen (14) days of this decision. If the respondents do not serve their written position within this timeframe, their alternative position will be deemed abandoned.

12If the applicant or union wish to respond to the respondents’ position, they are directed to set out their position in writing and serve the respondents, the applicant or union, and the Tribunal within twenty-one (21) days of this decision.

13Section 43(2) of the Code provides that the Tribunal shall not finally dispose of an application without affording the parties a chance to make oral submissions. Accordingly, the Registrar is directed to schedule a hearing to address the following issues:

(a) Should the Application against the respondents be dismissed as a result of the withdrawal of the applicant’s March 3, 2008 grievance?

(b) Should the Application against the respondents be dismissed as a result of the settlement of the applicant’s July 3, 2008 grievances?

(c) Should the Application against the respondents be dismissed as a result of release language contained in the settlement of the applicant’s July 3, 2008 grievances?

(d) Should the Application against the respondents be dismissed as a result of the WSIB’s involvement in the applicant’s workplace issues?

14The following directions shall apply to the hearing:

(a) The applicant should be prepared to proceed first at the hearing, by responding to the written arguments of the respondents and the union on the questions set out in paragraph 13 above.

(b) Any party that wishes to rely on any written materials (including written submissions or documents) in addition to the submissions set out in paragraphs 11 or 12 above, or rely on any facts not contained in the Application, Responses, Reply, or Request to Intervene, must deliver them to the other parties and file them with the Registrar within 21 days of the date of this decision.

(c) No further steps need be taken by any party, with the exception that the applicant may file a Reply within the deadline set out in the Rules.

15In preparing for the hearing, the parties may want to review section 45.1 of the Code, the Tribunal’s jurisprudence on that section and the Applicant’s Guide, pages 4 -5, available on the Tribunal’s website or from the Registrar’s office,

16I am not seized of this matter.