Roberts v. Workplace Safety and Insurance Board, 2009 HRTO 1520

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Cathy Roberts

Applicant

-and-

Workplace Safety Insurance Board, Sarah Parker, Sheila Little, Wendy McConickie and Yolanda Chang

Respondents

-and-

Canadian Union of Public Employees Local 1750

Intervener

INTERIM DECISION

Adjudicator: Michelle Flaherty

Date: September 25, 2009

Citation: 2009 HRTO 1520

Indexed as: Roberts v. Workplace Safety and Insurance Board

1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”) in which she alleges discrimination on the basis of disability in employment.

BACKGROUND

2On July 2, 2009, the Canadian Union of Public Employees Local 1750 (“Union”) filed a Request to Intervene on the basis that the Application raises issues relating to the collective agreement. The Union advised that no grievance had been filed.

3On July 10, 2009, the respondents filed a Response disputing the allegations contained in the Application. They also filed a Request for an Order during Proceedings (“Request”) asking that the Application be dismissed because it contains insufficient facts and evidence to support allegations of discrimination under the Code. In the alternative, the respondents argue that the Application should be dismissed because the issues raised are more properly dealt with through a grievance proceeding.

4On July 15, 2009, the Applicant filed a Form 11 and indicated that she objects to the Union’s Request to Intervene. On August 4, 2009, she filed a Reply in which she objected to the Request.

ANALYSIS

Does the Application contain allegations within the Tribunal’s power to decide?

5The Tribunal does not have the power to deal with general allegations of unfairness; it can only determine whether there has been discrimination on a ground specified in the Code.

6Section 5 of the Code, which deals with discrimination in the context of employment, states:

5. (1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status or disability.

7The applicant alleges that she was treated unfairly in the workplace. She has also stated that she has a disability under the Code. There is, however, some ambiguity as to what extent the applicant’s allegations of unfair treatment relate to her disability.

8The respondents argue that the information contained in the Application does not support allegations of discrimination and that the respondents’ conduct, even as alleged, does not constitute discrimination. The respondents state that the Application should be dismissed on this basis. I disagree.

9The allegations are somewhat ambiguous. However, I am satisfied that the applicant does make allegations that bring this matter within jurisdiction (power) of the Tribunal. For example, she alleges that the respondents did not respect medical documentation supporting her absences and that she was warned or disciplined for innocent absenteeism.

10I have considered whether the Application is within the Tribunal’s jurisdiction and I find that, on the face of the documents filed with the Tribunal, the Application contains allegations which fall within the Tribunal’s jurisdiction to decide.

Must the applicant file a grievance?

11The respondents also argue that the Application should be dismissed because it raises issues more properly addressed in a grievance.

12Before the 2008 amendments to the Code, the Ontario Human Rights Commission considered (as a factor in its decision to refer a matter to the Tribunal) whether a complaint could more appropriately be dealt with under another statute.

13Under the current Code, this is no longer a basis for dismissing the application. Pursuant to section 45.1 of the current Code, the Tribunal will only dismiss an application if another proceeding has appropriately dealt with the substance of the application. In the circumstances of this case, no other proceeding is alleged to have appropriately dealt with the substance of the Application. It is therefore not appropriate to dismiss the Application.

14The Tribunal will generally defer (rather than dismiss) an application where there is an ongoing grievance under a collective agreement based on the same facts and issues. In this case, however, no grievance has been filed in regards to the allegations contained in the Application and it is, therefore, not appropriate to defer the Application.

15Accordingly, the respondents’ Request is denied.

THE UNION’S REQUEST TO INTERVENE

16Where an application raises issues that likely impact the collective bargaining relationship between a union and a respondent employer, the Tribunal will more often than not allow a request to intervene.

17The applicant has opposed the Union’s Request to Intervene because:

a. the Union did not file a grievance regarding the incidents that gave rise to this Application; and

b. as she has now retained counsel, the Union’s participation is unnecessary.

18In my view, the Union has an interest in the outcome of this Application. Notwithstanding the applicant’s submissions, I am satisfied that the Application raises issues that may affect the collective bargaining between the respondents and the Union.

19The Union’s Request to Intervene is granted.

20I am not seized of this matter.