McCrea v. Loblaw Companies Limited, 2009 HRTO 17

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Linda McCrea

Applicant

-and-

Loblaw Companies Limited, Richard Camara and O’Neil Brown

Respondents

INTERIM DECISION

Adjudicator: Mark Hart

Date: January 7, 2009

Citation: 2009 HRTO 17

Indexed as: McCrea v. Loblaw Companies Limited

APPEARANCES BY

Linda McCrea, Applicant ) Cecil Norman, ) Representative

Loblaw Companies Limited, ) Ed Majewski, Richard Camara and O’Neill Brown ) Counsel Respondents )

1This is an Application filed August 20, 2008 under section 53(3) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2By Interim Decision dated October 10, 2008, the Tribunal directed that the respondents’ preliminary requests to dismiss this Application be heard orally at a one day case resolution conference. This oral hearing was held on December 18, 2008.

3The Tribunal’s October 10, 2008 decision also directed that notice of this Application be given to the applicant’s union, and that the union be directed to advise within five days whether it wished to participate in this proceeding. As no Response has been received from the union, this matter is proceeding in the union’s absence.

4At the conclusion of the hearing on December 10, 2008, I issued the following oral decision:

a. This is a preliminary request to dismiss the Application under s. 45.1 of the Code or for lack of timeliness.

b. Section 45.1 of the Code provides as follows:

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.

c. The respondents take the position that the substance of the Application already has been appropriately dealt with as a result of a grievance filed on the applicant’s behalf by her union in January 2002. The evidence indicates that the union sent a letter to the respondent company dated October 16, 2002 stating that the union believed that this grievance had been resolved and therefore withdrew the grievance. No evidence was provided that the applicant concurred with the union’s position, and the applicant stated before me that she did not agree.

d. The respondents further point to a meeting held on November 2, 2006 involving the applicant, her union and various representatives of the company where her accommodation issues were discussed. This meeting was followed by a letter from the company to the applicant dated November 8, 2006 which states that it was agreed that there was no wage loss as a direct result of the applicant’s work related injury and indicates that the company would continue providing modified duties to the applicant on U-Scan and Courtesy Desk only. The applicant was asked to raise any issues about these modified duties with her store manager. The applicant does not recall this letter, but she does recall the meeting and states that she was not satisfied by the outcome of the meeting. The applicant’s complaint to the Ontario Human Rights Commission, which forms the basis of this Application, was filed on November 2, 2006.

e. The main problem with the respondents’ argument is that, as a result of these events, there is no “proceeding” within the meaning of s. 45.1 of the Code to which I can have regard as having appropriately dealt with the substance of the Application. There is no arbitration decision, settlement or other resolution relating to all or part of the issues raised in this Application upon which I can base any reliance upon s. 45.1.

f. The respondents encourage me to take an expansive interpretation of the term “proceeding”, and interpret this term to include the actions taken by the union in considering the grievance resolved and withdrawing the grievance, as they did in 2002, and to include the kind of multi-party meetings such as occurred in November 2006. The respondents raise the concern that if s. 45.1 is not interpreted in this expansive way, companies and unions will not be motivated to engage in these kinds of informal processes and will insist that all matters proceed to arbitration either for a full hearing and determination of the issue or for a consent order based on a settlement between the parties.

g. I do not accept these dire warnings about the implications of a more restrictive interpretation of s. 45.1. Section 45.1 provides for the summary dismissal of an application at the outset based upon its substance already having been appropriately dealt with in another proceeding. That is entirely separate from consideration of the merits of an application, and the determination of issues such as whether an employer fulfilled its duty to accommodate by engaging in the kinds of multi-party discussions raised by the Supreme Court of Canada in the Renaud decision: Central Okanagan School District No. 23 v. Renaud 1992 CanLII 81 (SCC), [1992] 2 S.C.R. 970. The kind of evidence referenced by the respondents in this case can be raised at the hearing on the merits of this Application, and is appropriately dealt with in that context. It is not, however, an appropriate basis for summary dismissal under s. 45.1 at the outset.

h. The respondents also rely upon the decision of a WSIB claims adjudicator dated May 22, 2007. This decision concludes that the modified duties being offered to the applicant, which the respondent states were duties in Holy Smokes, Customer Service and U-Scan, were beyond the applicant’s medical restrictions. As a result of this decision, the applicant has not worked at the respondent company since May 19, 2007.

i. The difficulty with the respondents’ reliance upon this decision is that the decision is prospective and does not deal with the events giving rise to the complaint, which was filed in November 2006. While there is no question that this decision may have an impact on the remedy available to the applicant if any violation of the Code is found, it does not deal with the substance of the application. As a result, even assuming without deciding that a decision of a WSIB claims adjudicator is a “proceeding” within the meaning of s. 45.1 of the Code, there is no basis for the Application to be dismissed under s. 45.1 as a result of the May 22, 2007 decision.

j. The respondents requested that I reserve my decision to afford them an opportunity to review their files to determine whether there were any earlier WSIB decisions that dealt with the substance of the Application. I declined this request. If the respondents locate any such earlier WSIB decisions, they may re-raise the issue of the potential application of s. 45.1 either through a letter to the Registrar-Transition or at the outset of the Case Resolution Conference.

k. Finally, the respondents raise the issue that the Application should be dismissed for lack of timeliness. Section 34(1)(b) of the Code provides that if there was a series of incidents, an application may be filed within one year after the last incident in the series. The precise interaction between s. 34(1) and the transition provisions of the Code is unclear. Assuming, without deciding, that s. 34(1) has any application to the transition provisions under Part VI of the Code, it is my view that the one year period should be measured from the time the last incident occurred until the time when the underlying complaint was filed with the Commission. In this case, the underlying complaint was filed on November 2, 2006 and alleges a series of incidents involving alleged discrimination, harassment and a failure to accommodate which run up until and perhaps even after the complaint was filed. As a result, there is no basis for dismissal of the complaint under s. 34(1) even if we assume that it applies to transition applications.

l. The respondents have raised concerns about prejudice resulting from the applicant allegedly failing to raise her allegations in a more timely manner. For example, the respondents state that a former union representative who was involved in these matters is now deceased, and some of the company’s records pertaining to these matters may no longer exist. In my view, these are matters that can be raised at the hearing on the merits and can be taken into account by the adjudicator in weighing the evidence and making findings of fact.

m. Accordingly, this matter will proceed to the Case Resolution Conference on the merits. Within 30 days of today, the applicant shall serve and file the materials required under Rule 9.1 and shall make disclosure as required under Rule 9.3. The applicant is directed to provide full particulars of the allegations made in her complaint, including the dates, times and nature of the alleged harassment and denials of accommodation. Within 45 days of today, the respondents shall serve and file the materials required under Rule 9.2 and shall make disclosure as required under Rule 9.3.

5The Tribunal will set a date for the Case Resolution Conference and will advise the parties.