HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Patricia Homonnay

Applicant

-and-

Canadian Union of Public Employees (National), Canadian Union of Public Employees Local 1750 and Harry Goslin

Respondents

INTERIM DECISION

Adjudicator: Michelle Flaherty

Date: October 15, 2009

Citation: 2009 HRTO 1691

Indexed as: Homonnay v. Canadian Union of Public Employees

BACKGROUND

1This is an Application under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), in which the applicant alleges that she was discriminated against in the context of her membership in a vocational association. She alleges that she was sexually harassed and suffered reprisal or the threat of reprisal.

2The applicant is a long-term employee of the Workplace Safety and Insurance Board. She is the chief steward of Canadian Union of Public Employees Local 1750 (the “Local Union”). The individual respondent (“Goslin”) is the president of the Local Union.

3In essence, the Application relates to allegations that the individual respondent made sexually inappropriate comments to the applicant. The applicant reported the alleged comments to her employer, who initiated an investigation.

4The applicant alleges that the respondents reprised against her. More specifically, she alleges that, among other things, the individual respondent disparaged and made false allegations about the applicant and her witnesses, relieved the applicant of some of her union-related responsibilities, and inappropriately disclosed her personal information as well as details of the employer’s investigation. She also alleges that the respondents have not taken appropriate steps to investigate her allegations and that the individual respondent has inappropriately refused to recuse himself from discussions concerning the Local Union’s approach to the applicant’s complaint.

5The respondent, the Canadian Union of Public Employees (National) (the “National Union”) filed a Response, arguing that the allegations relate to the Local Union and asking that the matter be dismissed against the National Union.

6Two of the respondents, the Local Union and Goslin, filed a Response requesting that the Tribunal dismiss the Application because another proceeding has in whole or in part appropriately dealt with the substance of the Application. In the alternative, these respondents also asked that the Application be deferred based on the following other proceedings, then in progress:

a. four grievances filed by the Local Union on behalf of Goslin, alleging that the employer has acted in breach of the collective agreement;

b. an internal investigation being conducted by the National Union; and

c. an investigation being conducted by the applicant’s employer.

7A mediation took place in July 2009, but the parties were unable to resolve the dispute.

8Following the mediation, the respondents, the Local Union and Goslin, wrote to the Registrar to reiterate their Request to Defer the Application. They now ask that the Application be deferred because:

a. grievance hearings began in September of 2009 and are ongoing;

b. Local Union elections are being held during November 2009 and, depending on the results of the elections, some of the remedies sought by the applicant may be moot; and

c. it would be disruptive to all of the parties to participate in union elections at the same time as Tribunal proceedings.

9The Tribunal set a schedule for the parties to provide written submissions regarding the Request to Defer. The respondent, the National Union, wrote to the Registrar and advised that it takes no position regarding the Request to Defer.

10The applicant vigorously opposes the Request to Defer. She argues that the grievances do not address the issues raised in the Application. She argues that the union elections, their effect on possible remedies and any possible disruption they may cause are not sufficient reasons to defer the Application. She says this is particularly the case in these circumstances, where the respondents have controlled the grievance process and have deliberately excluded the applicant from that proceeding. The applicant contends that the Request to Defer is merely an attempt to sweep her concerns under the rug.

11The grievance arbitration hearing began in early September. After the parties had filed their submissions on the Request to Defer, they advised the Tribunal that an arbitration decision had been rendered which addresses one of the grievances filed on behalf of Goslin.

12According to the Local Union and Goslin, the arbitration board concluded that the applicant and Goslin were engaged in Union business at the time of the March 2008 incident and that the employer had no basis for imposing discipline on Goslin for the incident.

13According to these respondents, the ruling disposes of one of the four grievances filed on behalf of Goslin. The other grievances will apparently be scheduled for hearing, although the respondents did not provide the Tribunal with any scheduled hearing dates.

ANALYSIS

Is a dismissal against the Local Union appropriate in light of the arbitration decision?

14Section 45.1 of the Code states:

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.

15I cannot conclude that the grievance proceeding has so far addressed the substance of the Application. The grievances were not filed by the applicant or even on behalf of the applicant. They were filed by the individual respondent and relate to his concerns about the conduct of the employer’s investigation into the applicant’s allegations.

16The grievances allege that the employer breached the collective agreement by, among other things, failing to consult the union before hiring a third-party investigator, improperly disclosing Goslin’s personal information by circulating the investigation report, and failing to provide Goslin with legal representation for the purposes of the investigation.

17The arbitration board’s decision addresses only the preliminary issue of whether the employer could properly discipline Goslin for his union-related activities. It is clear that the arbitral decision did not address the substance of the respondent Goslin’s allegations, let alone the substance of the Application.

18Accordingly, the Request to Dismiss is denied.

The Request to Defer

19Section 45 of the Code gives the Tribunal the power to defer an application in accordance with its Rules of Procedure (“Rules”).

20Rule 14.1 of the Rules states:

The Tribunal may defer consideration of an Application, on such terms as it may determine, on its own initiative, at the request of an Applicant under Rule 7, or at the request of any party.

21The Tribunal will generally defer an application where there is an ongoing grievance under a collective agreement based on the same facts and issues. However, the Tribunal must also consider, in light of the particular circumstances of each case, whether deferral is the most fair, just and expeditious way of proceeding with the Application.

22Some of the factors that may be relevant in deciding whether to defer consideration of an application before the Tribunal are the subject matter of the other proceeding, the nature of the other proceeding, the types of remedies available in the other proceeding, and whether it would be fair overall to the parties to defer the Application, having regard to the status of each proceeding and the steps that have been taken to pursue them.

23The only element the Local Union and Goslin have identified in common between the grievance and the Application is the parties’ alleged involvement in the circulation of a confidential report and a petition. According to these respondents, to proceed with the Application would create a risk that different decsion-makers might reach different findings of fact on this issue.

24As I noted, the nature of the two proceedings is quite different; they involve entirely different parties and entirely different remedies. Except for one identified element of factual overlap, they cannot be said to be based on the same facts and issues.

25Importantly, while the grievance arbitration hearing has begun, all of the hearing time to date has been spent leading evidence and addressing the preliminary issue of the employer’s ability to discipline Goslin. The arbitration board has not heard evidence regarding the alleged privacy breach or the roles of the parties to this Application in the circulation of the investigative report. Based on the materials filed by the respondents, it appears that dates have not been fixed for the continuation of the grievance proceedings. In the circumstances, the current status of the grievance proceeding does not militate in favour of a deferral.

26In my view, in the circumstances and in light of the factors set about above, a deferral is not appropriate. There are material differences between the two proceedings. To the extent that there may be an overlap on one factual element, given the narrow factual overlap and the status of the grievance proceeding, I am not satisfied that a deferral of the Application is the most fair, just and expeditious manner of proceeding.

27I agree with the applicant that, in the circumstances of this case, the upcoming elections do not justify a deferral of the Application. The Local Union and Goslin have not provided any particulars regarding the alleged “extreme disturbance” to all parties or the union’s reduced ability to service their members.

28Lastly, the Local Union and Goslin seek a deferral because some (but not all) of the remedies requested in the Application might be moot if either the applicant or the individual respondent is not re-elected. For example, the applicant is seeking the removal of the personal respondent from his Local Union position.

29The parties have made submissions regarding whether the Tribunal would have the jurisdiction to award remedies such as the removal of a union officer. In my view, it is not necessary for me to address this question in order to determine the Request to Defer.

30The applicant has indicated that, regardless of the election outcome, she will continue to at least seek a financial remedy and the implementation of a safety plan. I agree with the applicant that, in the circumstances of this case, the fact that some remedies sought may or may not be available is not a sufficient reason to defer the Application.

31Accordingly, the Request to Defer is denied.

The National Union’s Request to Dismiss

32In my view, the National Union’s request that the Application be dismissed against it raises substantive issues that cannot be dealt with appropriately as a preliminary issue.

33I am not prepared to consider the National Union’s Request to Dismiss at this stage of the proceedings. This decision is without prejudice to the National Union’s ability to raise the issue at the hearing of the matter.