Chao v. Mon Sheong Home for the Aged, 2009 HRTO 2241

Human Rights Tribunal of Ontario

B E T W E E N:

Maidy Chao Applicant

-and-

Mon Sheong Home for the Aged Respondent

AND BETWEEN:

Maidy Chao Applicant

-and-

Canadian Union of Public Employees, Local 2725, Risa Pancer, Mon Sheong Foundation and Grace Lo Respondents

INTERIM DECISION

Adjudicator: Alan Whyte Date: December 21, 2009 Citation: 2009 HRTO 2241 Indexed as: Chao v. Mon Sheong Home for the Aged

1These Applications made under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), allege, in file number 2009-01902-I (“the first Application”) discrimination on the basis of place of origin and disability in employment, and in the case of file number 2009-02241-I (“the second Application”) discrimination on the basis of disability as well as reprisal in employment.

2This Interim Decision will address certain requests that the parties have made to date and will provide direction for the processing of these Applications by the Tribunal.

THE FIRST APPLICATION

3The first Application was filed on April 6, 2009 and named the applicant's employer as the only respondent. The respondent filed a Response and a Request for an Order during Proceedings (“RFOP”) on July 2, 2009 which together raise the following issues:

• the Application should be dismissed on the basis that the applicant is deemed to have signed a full and final release in a previous arbitration proceeding with respect to the same subject matter covered by the Application;
• the Application should be dismissed on the grounds that another proceeding has fully dealt with its substance;
• the Application should be dismissed due to delay;
• the portion of the Application in which the applicant has alleged discrimination or harassment based on disability should be dismissed due to the fact that the applicant’s allegations in the Application do not fall under the protected ground of disability under the Code.

4On June 23, 2009, the Canadian Union of Public Employees and its Local 2725 (“the union”) filed a Request to Intervene. The respondent has consented to the Request to Intervene. The applicant has not responded and the time for doing so has now passed.

5On July 31, 2009, the applicant filed a Request to Withdraw the Application.

THE SECOND APPLICATION

6On May 7, 2009, the applicant filed a second Application against the union, Risa Pancer, counsel for the union, Mon Sheong Foundation and Grace Lo, the applicant’s supervisor. The allegations against the Mon Sheong Foundation and Grace Lo are similar, although not identical, to the allegations against the respondent in the first Application.

7The union and Risa Pancer have filed a Response to the second Application. The other respondents have not, but have communicated with the Registrar to indicate that they require further direction from the Tribunal in light of what they term to be confusing and duplicitous proceedings by the applicant. In particular, the respondent Mon Sheong submits that it should not be required to respond to the second Application as it is substantially the same as the first one, and that in the circumstances, the applicant should be required to amend the first Application to add the union and Ms. Pancer as respondents. Mon Sheong also says that if required to respond to the second Application, it will request the same Orders for dismissal as it did in respect of the first Application.

DIRECTIONS

8The Tribunal issues the following directions and orders:

• the objections and RFOP of the respondent in the first Application will also apply to the second Application;
• the union is a respondent to the second Application. The union's Request to Intervene in respect of the first Application is allowed. The union will be entitled to participate fully at the hearing described below.
• a one day hearing will be scheduled by the Registrar to address the following issues: (i) whether all or part of the Applications should be dismissed on the basis that the applicant is deemed to have signed a full and final release with respect to matters covered by her Applications; (ii) whether the Applications should be dismissed because another proceeding has appropriately dealt with the substance of the Applications; (iii) whether the Applications should be dismissed because of delay. (iv) in the event that the Applications are not dismissed, whether the Applications should be consolidated and/or whether the applicant should be permitted to withdraw the first Application.

9The applicant is to provide to the other parties and file with the Tribunal her submissions regarding the above issues, any documents that she intends to rely on at the hearing beyond what has already been filed, and any case law on which she intends to rely at the hearing, at least 21 days before the hearing date. With respect to the delay issue, she should make submissions regarding the question of whether or not the delay in filing the Application was incurred in good faith (see section 34 (2) of the Code).

10The respondents shall provide to the other parties and file with the Tribunal their submissions regarding the above issues, any documents upon which they intend to rely at the hearing beyond what has already been filed, and any case law on which they intend to rely at the hearing, at least 14 days before the hearing date. With respect to the delay issue, they should make submissions as to whether they have experienced substantial prejudice as a result of the delay (see section 34 (2) of the Code).

11The applicant may wish to review the Tribunal’s Rules and Guide to its processes, available on the Tribunal’s website at www.hrto.ca, before preparing her submissions.

12I am not seized.