Bennett v. OMNI Health Care, 2009 HRTO 1841

Case Summary

The applicant filed an application alleging discrimination in employment on the basis of disability, family status, and reprisal against her employer, union, and the WSIB. The employer and union respondents requested that the application be deferred pending the determination of outstanding grievances. The Tribunal noted that the application did not clearly allege Code violations against the WSIB and its adjudicator. The Tribunal issued an interim decision directing the applicant to provide written submissions on whether she wished to continue against the WSIB respondents and on the request for deferral.

B E T W E E N:

Kristine Bennett Applicant

-and-

OMNI Health Care Limited Partnership (o/a Rosebridge Manon), Dorothy Broeders-Morin, Nancy Unsworth, Kori Bigelow, Catherine Bernicky, Susan Thompson, Mary Banks, Sharlene Pankow, Workplace Safety and Insurance Board of Ontario, Brenda Winton, United Food and Commercial Workers Canada Locals 175 &633 and Paul Hardwick Respondents

INTERIM DECISION

Adjudicator: Naomi Overend Date: November 2, 2009 Citation: 2009 HRTO 1841 Indexed as: Bennett v. OMNI Health Care

1The applicant filed this Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the "Code") alleging discrimination in employment and contracts on the basis of disability, family status and reprisal. The Application names multiple respondents.

2The Tribunal has received Responses on behalf of all respondents but the Workplace Safety and Insurance Board ("WSIB") and Brenda Winton, whom the applicant advises is an Adjudicator with the WSIB. There is an issue about whether these two respondents are properly named in light of the apparent absence of any allegation of discrimination against them in the Application.

3In addition, there is a request to defer this Application in the Response filed on behalf of OMNI Health Care Ltd. ("OMNI") and the three named management employees and in the Response of the United Food and Commercial Workers Canada Local 175 &633 ("UFCW") and Paul Hardwick. These Responses note that there are outstanding grievances dealing with the subject-matter of the Application.

4The purpose of this Interim Decision is to address the issues raised and request the applicant's submissions on them.

BACKGROUND

5The applicant worked as a dietary aide in a long-term care facility. It is common ground between the parties that she was injured in a workplace accident in 2004, which left her with permanent restrictions. The bulk of the allegations in the Application concern the year-long period leading up to her termination in March 2009.

6The applicant alleges that she experienced prolonged harassment after she made allegations against a co-worker in March or April 2008. The Application contains numerous allegations of co-workers making comments questioning the legitimacy of her restrictions and refusing to assist her with duties that were outside her medical restrictions. She alleges that management did nothing when she complained about this treatment and eventually started disciplining her instead of the culprits. Eventually, her employment with OMNI was terminated.

REMOVING THE WSIB AND ADJUDICATOR AS RESPONDENTS

7It is not clear from the Application what the applicant's allegations are vis-à-vis the WSIB and the individual respondent, Brenda Winton. More specifically, it is not clear whether the applicant is alleging that the WSIB and Ms. Winton violated the Code. In the absence of any alleged violation, the Tribunal is without jurisdiction to continue the proceeding against these two named respondents.

8The applicant is directed to provide written submissions setting out whether she wishes to continue against these two respondents and, if so, clarifying the manner in which they are alleged to have violated the Code.

DEFERRAL

9As noted above, in their respective Responses OMNI, its management employees, the UFCW and Paul Hardwick, seek to defer this Application pending the determination of the grievances filed by the UFCW. The respondents take the position that the grievance arises out of the same facts as this Application.

10The Tribunal will generally defer an application where there is an ongoing grievance or grievances under a collective agreement based on the same facts and issues. However, the Tribunal must also consider, in light of particular circumstances of each case, whether deferral is the most fair, just and expeditious way of proceeding with the application. Before making such a determination, the Tribunal gives the parties an opportunity to make submissions on this issue.

11The applicant has not yet filed her Reply or otherwise responded to the respondents' request to defer. Accordingly, she is directed to provide written submissions on the respondents' request for deferral.

12The applicant's written submissions on both issues should be delivered to the respondents or their representatives and filed with the Tribunal by November 12, 2009.

13The Tribunal acknowledges that there is an outstanding request by the UFCW and Mr. Hardwick concerning whether the Application contains any allegations concerning the manner in which they are alleged to have violated the Code. This will be dealt with, if necessary, after the issue of deferral is addressed.

14I am not seized of this matter.

Dated at Toronto, this 2nd day of November, 2009.

"Signed by"

Naomi Overend Vice-chair