Cartier v. Northeast Mental Health Centre, 2009 HRTO 1118

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Louise Cartier

Applicant

-and-

Northeast Mental Health Centre – North Bay Campus, Ontario Public Service Employees Union, Local 636, Her Majesty the Queen in Right of Ontario, as represented by the Minister of the Ministry of Health and Long Term Care, Karen Bennett, Marlene Thacker, Don Coutts, Selinah Sogbein, Johanna Fontaine, Mary Anne Lamothe, Ehren Baldauf, Alison Robinson, Jennifer Lyle, Mary Mars, Diane Windsor, Anne Sinclair, Darlene Dubonnet Beauchy, Lorraine Roy, Sonja Brown, Karen Robinson, Lou-Ann Joubenvill, Debbie Orton, Caroline Betty, Jocelyn Rose, Angela Leblanc, Nicole Beaulieu, Kim Jones, Fred Skinner, Jody Jesse, Maureen Leclaire, Sandy Larochelle, Penelope Roberts, Kim Point, Kirk Hewitt, Shirley Bell, Karen Sherry, Marilyn Nairn, Tony Morabito, Marion Mellville, Graig Nesbitt, Jackie Smythe, and Jackie Crawford

Respondents

INTERIM DECISION

Adjudicator: Sheri D. Price

Date: July 23, 2009

Citation: 2009 HRTO 1118

Indexed as: Cartier v. Northeast Mental Health Centre

BACKGROUND

1The applicant requests that she be permitted to add the ground of “disability” to her Application. Without determining whether the applicant may add that ground at this time, there is a threshold issue about whether the applicant’s alleged illness on January 19, 2009 may be considered a “disability” within the meaning of the Code. Not all illnesses have been found to be “disabilities” within the meaning of the Code.

2On reviewing the Application, it appeared to the Tribunal that the Application may have been filed outside the time permitted in the Code. There was also an issue with respect to whether all or part of the subject-matter of the Application was within the Tribunal’s jurisdiction. An earlier Interim Decision in this matter sought submissions from the applicant on both of these issues: 2009 HRTO 691.

3The applicant has filed submissions with the Tribunal in which she withdraws the allegations that she was discriminated against on the basis of record of offences and association with a person identified by sex and/or record of offences.

4The applicant maintains that she was discriminated against on the basis of sex and subject to reprisals contrary to the Code. Specifically, the applicant alleges that Northeast Mental Health Centre – North Bay Campus (“NEMHC”)’s practice of not permitting her to work on an all-male ward on the night shift during the period from December 5, 2005 to December 22, 2007 because she was a female nurse was discriminatory on the basis of sex. She also alleges that on January 19 and 20, 2009, she was reassigned from the all-male ward to another ward because she was female and that this constituted discrimination on the basis of sex contrary to the Code.

5The applicant further alleges that the respondent employer, NEMHC, and the applicant’s immediate supervisor, Karen Bennett, engaged in a reprisal when NEMHC terminated the applicant’s employment on January 24, 2008 because the applicant intended to file grievances alleging discrimination on the basis of sex contrary to the Code.

6In her submissions, the applicant also asks that she be permitted to add “disability” as an additional ground of discrimination and alleges that the respondent, Northeast Mental Health Centre – North Bay Campus, (“NEMHC”) and Marilyn Nairn, the labour arbitrator who heard her discharge grievance, discriminated against her on the basis of disability by not accepting her doctor’s note as valid proof of illness on January 19, 2008.

TRIBUNAL’S JURISDICTION OVER ADJUDICATIVE DECISIONS

7The applicant’s employment with NEMHC was terminated on January 24, 2008. The applicant’s trade union, Ontario Public Service Employee’s Union, Local 636 (“OPSEU”), also a respondent in this matter, filed a grievance alleging that the applicant had been discharged without just cause. The grievance was referred to arbitration before Marilyn Nairn, an independent labour arbitrator appointed under the terms of the Labour Relations Act, 1995.

8In a decision dated October 27, 2008, Arbitrator Nairn dismissed the grievance and upheld the applicant’s termination. Among other things, the arbitrator rejected the assertion that the applicant left work due to illness on January 19, 2008. Rather, she found, based on the evidence that the applicant was not sick on the date in question but that she claimed to be in order to avoid a work assignment that she did not like.

9The applicant’s claim of discrimination by Marilyn Nairn, relates entirely to Ms Nairn’s adjudicative function as the labour arbitrator appointed under the Labour Relations Act, 1995. The applicant alleges that the arbitrator discriminated against her “in respect of employment” by finding, in her arbitration decision, that the applicant was not sick as she claimed.

10The applicant’s submissions raise an additional issue with respect to whether the Tribunal has jurisdiction over the applicant’s allegations against the labour arbitrator who heard her discharge grievance. In other cases, the Tribunal has concluded that it does not have jurisdiction over Applications based on the adjudicative decisions of other statutory tribunals (Christianson v. Social Benefits Tribunal, 2009 HRTO 886, Christianson v .Ontario (IPC) 2009 HRTO 203).

11The Tribunal directs the applicant to provide her submissions on whether her allegations against Arbitrator Nairn are within the Tribunal’s power to decide.

12The applicant’s submissions should be filed with the Tribunal within 20 days of the date of this Interim Decision. The respondents are not required to file responses to the applicant’s submissions unless and until directed to do so by the Tribunal. If the applicant does not file submissions as directed by this Interim Decision, the Tribunal will determine this jurisdictional issue based on the material already before it.

PARTIES TO THE PROCEEDING

13In its earlier Interim Decision in this matter, the Tribunal indicated that, after determining the jurisdictional and delay issues, it would address whether all of the named respondents ought to be parties to the Application in light of section 36 of the Code and the Tribunal’s jurisprudence.

14Section 36 of the Code identifies the parties to a proceeding before the Tribunal:

36. The parties to an application under section 34 or 35 are the following:

37. In the case of an application under subsection 34 (1), the person who made the application.

38. In the case of an application under subsection 34 (5), the person on behalf of whom the application is made.

39. In the case of an application under section 35, the Commission.

40. Any person against whom an order is sought in the application.

41. Any other person or the Commission, if they are added as a party by the Tribunal.

15The Application appears to relate primarily to the alleged actions of the applicant’s former employer, NEMHC. There do not appear to be specific allegations of discrimination by many of the other named respondents.

16The Tribunal directs the applicant to provide her submissions on why all of the respondents she has named in this matter are properly parties to the Application pursuant to section 36 of the Code and the Tribunal’s case law. In making her submissions, the applicant may wish to consider the Tribunal’s decisions in cases such as Christianson v Lai, 2009 HRTO 1071 and Boukort v Securitas 2009 HRTO 890.

17The applicant’s submissions should be filed with the Tribunal within 20 days of the date of this Interim Decision. The respondents are not required to file responses to the applicant’s submissions unless and until directed to do so by the Tribunal. If the applicant does not file submissions as directed by this Interim Decision, the Tribunal will determine this issue based on the material already before it.

WHETHER APPLICANT HAS A “DISABILITY” UNDER THE CODE

18The applicant requests that she be permitted to add the ground of “disability” to her Application. Without determining whether the applicant may add that ground at this time, there is a threshold issue about whether the applicant’s alleged illness on January 19, 2009 may be considered a “disability” within the meaning of the Code. Not all illnesses have been found to be serious enough to amount to “disabilities” within the meaning of the Code.

19The Tribunal directs the applicant to provide her submissions on whether her alleged illness on January 19, 2009 may be considered a “disability” within the meaning of Code.

20The applicant’s submissions should be filed with the Tribunal within 20 days of the date of this Interim Decision. The respondents are not required to file responses to the applicant’s submissions unless and until directed to do so by the Tribunal. If the applicant does not file submissions as directed by this Interim Decision, the Tribunal will determine this issue based on the material already before it.

21The Tribunal’s cases referred to above may be searched online, for free, at www.canlii.org.

22I am not seized.