Maurer v. Metroland Media Group, 2009 HRTO 200

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Elizabeth Maurer

Applicant

-and-

Metroland Media Group Ltd. c.o.b. as The Hamilton Spectator,

Communications, Energy and Paperworkers’ Union of Canada, Local 87-M (Southern Ontario Newsmedia Guild) and Paul Morse

Respondents

INTERIM DECISION

Adjudicator: Sherry Liang

Date: February 24, 2009

Citation: 2009 HRTO 200

Indexed as: Maurer v. Metroland Media Group

WRITTEN SUBMISSIONS BY

Elizabeth Maurer, Applicant ) On Her Own Behalf

Metroland Media Group Ltd. c.o.b. as ) Sarah Eves, Counsel

The Hamilton Spectator, Respondent )

Communications, Energy and Paperworkers’ ) Mandy Wojcik, Counsel

Union of Canada, Local 87-M (Southern )

Ontario Newsmedia Guild) and Paul Morse, )

Respondents )

1This is an Application filed on August 8, 2008 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”).

2The style of cause is amended to reflect the correct legal names of the organization respondents.

3The Application alleges discrimination and harassment on the basis of sex in employment and membership in a vocational association. The applicant alleges that sexual harassment by a co-worker while she was working for Metroland (the “employer”) and the response to it by the employer and her union, the Southern Ontario Newsmedia Guild (the “union”) violated the Code.

4This Interim Decision addresses two issues: the applicant’s request to amend her Application and the union’s request for early dismissal of the Application under s. 45.1 of the Code. The parties have attended a mediation, which did not result in a settlement of the Application.

REQUEST TO AMEND THE APPLICATION

5The applicant filed a Request for Order During Proceedings on November 28, 2008, seeking to add to her Application an allegation of reprisal based on events that occurred after she filed the Application. The employer opposes the request, disputing the new facts the applicant wishes to add.

6A decision allowing a request to add new allegations merely permits the applicant to raise additional facts and issues. It is not based on an evaluation of whether they are founded. In view of the stage at which the request to amend is made, the nature of the amendments, and the absence of any apparent prejudice, I see no reason to deny the amendments. In these circumstances, the applicant’s request is granted. The respondents may file amended Responses within two weeks of the date of this decision.

REQUEST TO DISMISS UNDER SECTION 45.1

7In its Response, the union asks that the Application be dismissed pursuant to s. 45.1 of the Code, which reads 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.

8The union’s Response contains its submissions on this issue. The union makes two arguments in support of the application of s. 45.1. First, it states that the applicant filed a complaint under the employer’s internal harassment policy, pursuant to which the employer conducts an investigation. Under a Letter of Understanding under the collective agreement, the union and employer have agreed that “any employee who believes some sort of sexual harassment is taking place should follow the guidelines of the Company’s policy”. The union argues that the investigation is a “proceeding” that appropriately dealt with the substance of the Application within the meaning of s. 45.1. Second, it argues that because the allegations against the union focus upon its representation of her as bargaining agent, an application to the Ontario Labour Relations Board under s. 74 of the Labour Relations Act, 1995, S.O. 1995, c. 1, Sched. A (the “LRA”) is “the more appropriate forum” to deal with this dispute.

9The Tribunal discussed the purposes of s. 45.1 as follows in Campbell v. Toronto District School Board, 2008 HRTO 62 at para. 61:

…section 45.1 provides a basis for the Tribunal to preclude the re-litigation of issues that have been dealt with in another forum. This provision, along with other parts of the Code, gives expression to a legislative intention to avoid the duplication of proceedings.

10The Harassment Policy at the applicant’s workplace allows an employee who believes harassment or discrimination has occurred to file a complaint which is then investigated by the Human Resources Manager. The Policy provides that if the employee is not satisfied with the outcome of the investigation he or she may appeal it to “the Company”. It appears that the applicant filed a complaint under the Policy. The union states that upon receipt of the investigation report, the union, the applicant and the employer agreed on a resolution to her complaint. Based on these circumstances, the union submits that this Application should be dismissed under section 45.1, and the Tribunal should find that the process under the Harassment Policy is the “more appropriate forum” to address the applicant’s allegations of harassment.

11I find that an internal employer investigation is not a “proceeding” within the meaning of s. 45.1. A purely private, internal process established by an employer, without formal guarantees of procedural fairness, impartiality or independence, cannot deprive the applicant of the right to pursue a remedy under the Code. In addition, in this Application the applicant claims that the response by the union and employer to her complaint constitutes discrimination. As a separate claim of discrimination from the issues that prompted her original complaint, it is not clear that this has been “dealt with” within the meaning of section 45.1. Section 45.1 therefore does not apply to prevent the applicant from having her case heard by the Tribunal. The union’s request that the Application be dismissed based on the employer’s Harassment Policy is denied.

12There is also no merit to the union’s argument that the Application should be dismissed under s. 45.1 because the applicant could have made a complaint against the union to the Ontario Labour Relations Board. Section 45.1 addresses situations in which another proceeding has dealt with the substance of the Application, not in which another proceeding could deal with it. The existence of other avenues is not by itself a basis for the application of section 45.1.

WHETHER NOTICE SHOULD BE GIVEN TO THE CO-WORKER

13As part of the remedy requested the applicant asks, among other things, that the co-worker be fired. This co-worker’s rights and interests may therefore affected by the decision of the Tribunal and any remedy ordered. This co-worker has not been named as a respondent, and has not been given notice of this Application.

14The Tribunal wishes to have the submissions of the parties on whether the co-worker should be given notice of this Application so that he is given the opportunity to consider whether he wishes to participate in this proceeding. The Tribunal directs the parties to provide their submissions on this issue to each other and to the Tribunal, by Friday, March 6, 2009.

15I am not seized of this matter.