Ababio v. Humber River Regional Hospital, 2009 HRTO 286

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Cynthia Ababio

Applicant

-and-

Humber River Regional Hospital, Robert Thistle and Jill Green

Respondents

AND B E T W E E N:

Cynthia Ababio

Applicant

-and-

Service Employees International Union, Local 1 Canada,

Tim Oribine, Kevin Kucey and Andrea Przybio

Respondents

DECISION

Adjudicator: Janice Sandomirsky

Date: March 13, 2009

Citation: 2009 HRTO 286

Indexed as: Ababio v. Humber River Regional Hospital

APPEARANCES

Cynthia Ababio, Applicant ) Ben Ogunleye, Representative

Humber River Regional Hospital, Robert Thistle and Jill Green, Respondents ) Allyson M. Fischer, Counsel

Service Employees International Union, Local 1 Canada, Tim Oribine, Kevin Kucey and Andrea Przybio, Respondents ) Kirsten Agrell, Counsel

1These Applications were filed September 17, 2008, under section 53(3) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The underlying human rights complaints were filed with the Ontario Human Rights Commission on June 16, 2008, and abandoned upon filing the Applications with the Tribunal. In the Application against Humber River Regional Hospital, Robert Thistle and Jill Green (the “employer application”), the applicant alleges discrimination in employment on the basis of disability. In the Application against the Service Employees International Union Local 1 Canada (“SIEU”), Tim Oribine, Kevin Kucey and Andrea Przybio (the “union application”), the applicant alleges discrimination in vocational associations on the basis of disability.

2The respondents filed their Responses on October 9, 2008. The Responses raised a number of preliminary issues. In Interim Decision, 2008 HRTO 201, the Tribunal ordered first, that the Applications proceed together and, second, that the parties exchange submissions on the preliminary issues.

3A Case Resolution Conference was held on February 20, 2009. The parties made oral submissions. The applicant and one of the personal respondents in the union application, Andrea Przybio, provided oral evidence about the circumstances in which the applicant’s grievance against the employer was settled.

Background

4The applicant had been employed as a part-time clerical associate at Humber River Regional Hospital since November 1994. She was a member of the SIEU’s part-time clerical bargaining unit.

5In the spring of 2005, the applicant requested approval for a two month vacation. That request was denied. She was authorized to take a two week vacation between June 15 and June 26, 2005. The applicant left Canada for Ghana on June 15, 2005 and returned on August 24, 2005. After being in Ghana for a short time, she telephoned and notified the employer that she had contracted malaria and would not be returning until she recovered. On her return, she provided medical reports of her treatment in Ghana and follow up treatment from a specialist in tropical medicine in Toronto.

6The employer did not accept the applicant’s explanation for her absence from work. Its investigation concluded that the failure to return from the approved vacation was wilful and premeditated. As a result, the applicant was terminated on August 31, 2005.

7The applicant filed a grievance. The matter went before an arbitrator on February 22, 2007. The employer and the union made opening statements and introduced supporting documents. The employer submitted a written statement from another employee which stated, in essence, that the applicant was very angry about not getting her vacation request authorized and that she would “pay any sum of money to get a doctor’s note in Africa because she was going to take most of the summer off.”

8The employer called this witness at the second day of arbitration on April 19, 2007. After hearing the testimony, the arbitrator called a break in the proceedings and met with the parties and encouraged the parties to consider settlement of the case. After discussions between the union and the employer, they reached an agreement and the terms of the agreement, including a monetary payment, were set out in a consent order of the arbitrator. The order also included the following terms: the applicant “releases the Hospital from any and all claims that she may have against it, arising under the Collective Agreement, under any Statute, or at Common Law;” and the applicant “acknowledges that she has been represented by the Union in relations to these matters, in a manner that was not arbitrary, discriminatory, nor in bad faith.”

9The applicant claims that she did not agree with the decision to settle the case and did not agree with the settlement. She filed a duty of fair representation application with the Ontario Labour Relations Board (the “OLRB”) alleging that the union did not properly represent her in the termination grievance and had acted in bad faith, discriminatory or arbitrary fashion by pressuring her to accept a negotiated settlement of her termination grievance.

10Soon after filing, the applicant withdrew her OLRB application on the advice of a labour relations officer. On July 24, 2007, the OLRB issued a decision confirming the withdrawal. About a month after the date of that decision, the applicant wrote to the OLRB seeking to have her application listed for hearing. The OLRB issued a decision denying the request and providing reasons. The applicant made two requests for reconsideration which were declined with reasons. The final decision from the OLRB was dated January 28, 2008.

11As noted above, the applicant then filed a complaint against the employer and the union with the Human Rights Commission on June 16, 2008.

Preliminary Issues

12The respondents raised a number of preliminary objections to the Tribunal’s jurisdiction in these Applications.

1. The employer and the union submitted that the Tribunal has no jurisdiction to consider the applications which were filed after the one year time limit specified in section 34(1) of the Code, and that there was no basis for exercising the discretion under section 34(2).

2. The employer and union submitted that the applications should be dismissed pursuant to section 45.1 of the Code because the issues have already been dealt with in other proceedings.

3. The employer submitted that the application should be dismissed because the applicant agreed to release the employer of all claims she had against it as part of the settlement reached at the arbitration of the termination grievance.

4. The union submitted that the application should be dismissed because there is no evidence of any nexus between the misconduct alleged against the union and any prohibited grounds of discrimination under the Code.

Decision

13After considering the parties’ submissions on the preliminary objections, I conclude that both Applications should be dismissed.

14Section 34(1) of the Code allows applications alleging infringements of rights under the Code to be made within a one year time limit. It also gives the Tribunal discretion to accept late applications in certain circumstances:

34.(1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2:

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series.

(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

15There is no issue in this case that the Applications were filed more that a year after the alleged discriminatory incident, whether that be considered the termination from employment or the conclusion of the arbitration process. The applicant was terminated from her employment on August 30, 2005. The grievance procedure related to the termination was concluded on April 19, 2007. The complaints were filed with the Human Rights Commission on June 16, 2008. The termination and the settlement dates both fall outside the one year time limit set out in section 34(1).

16Are there circumstances that suggest that the delay was incurred in good faith? As noted in Corrigan, 2008 HRTO 424, to make that determination, the applicant must provide a reasonable explanation for why she did not pursue her rights under the Code in a timely manner.

17The applicant explained that she did not file a human rights complaint because she was not provided with the appropriate advice regarding her legal options. It is clear, however, that the applicant was very active in pursuing a legal remedy to her termination from employment. She initiated a grievance against the employer and saw it through to arbitration. It took a year and a half from the time of the applicant’s termination by the employer to the conclusion of the arbitration. Once the arbitration process was completed, the applicant chose to file a duty of fair representation complaint against the union with the OLRB. She confirmed that she sought and obtained advice from two legal clinics in relation to her complaint against the union at the OLRB. It was only after applicant exhausted all of her efforts against the union at the OLRB, that she began to pursue her rights under the Code against the employer and the union.

18I am not satisfied that the applicant’s explanation for the delay in applying for a remedy under the Code against the respondents is reasonable in the circumstances. The applicant was clearly aware of her rights and has not been loath to pursue her remedies in other forums. There were no medical or special circumstances advanced to explain her failure to pursue her remedies under the Code in a timely manner. The fact that she did not file a complaint under the Code until almost three years after her termination because nobody suggested she do so does not support a finding that the delay was incurred in good faith.

19Would the delay result is substantial prejudice to the respondents? The employer submitted that, if they are required to re-litigate the issues related to the applicant’s termination, they would be required to rely on the recollection and memory of various witnesses of an event that occurred almost four years ago. The employer also submitted that, after investing the time and money to reach a resolution of the applicant’s termination through the arbitration process, it should be able to rely on the April 2007 settlement.

20The union submitted that it would be prejudiced in having to respond to repeated applications all arising from the same set of circumstances. It argued that it was entitled to finality of the decisions of the OLRB, regarding the standard of the union’s representation. Furthermore, it noted that one of the respondents in the union application, and its main witnesses, was no longer employed by the union and the passage of time has eroded the memory of the other individual respondents who were involved in the April 2007 arbitration.

21I am satisfied that that the inquiry into the event in issue would have to rely on the witnesses’ recollections of events that took place between August 2005 and April 2007, and it is reasonable to conclude that the parties would be prejudiced in its ability to respond to the applications.

22Furthermore, I note that, the applicant’s grievance form and human rights complaint against the employer set out the very same issues related to her termination from employment. Similarly, the complaint to the OLRB and her human rights complaint against the union set out the same issues related to the union’s handling of the termination grievance. These complaints have been considered in other appropriate legal proceedings. The applicant was dissatisfied with the outcome of the arbitration and the OLRB decisions and submits that, because she did not agree to the settlement, she ought to be entitled to present her claim again before the Tribunal.

23There may be circumstances where the Tribunal will look behind the terms of an agreement to settle to determine whether the there are Code-related issues which may have forced the applicant into the settlement (see for example Bielman and Casino Niagara/Complex Services Inc. 2009 HRTO 123. In this case, however, there is no claim that there was a nexus between the settlement and the applicant’s disability.

24I note too that, in the application against the union, the applicant claimed discrimination on the basis of disability. However, the particulars of the complaint do not disclose any facts that suggest that the union discriminated against her on the basis of disability or any other prohibited ground. The allegations against the union focused on its representation of the applicant as bargaining agent, which was dealt with in the applicant’s complaints to the OLRB. As stated in Barton v. Miller, 2008 HRTO 205, the Code is not intended to address issues of misconduct or incompetence which that are not based on a prohibited ground.

The Tribunal’s jurisdiction (power) is based on the Code, which prohibits discrimination in accommodation, services, goods and facilities, and employment on the basis of race, ancestry, place or origin, colour, ethic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status or disability. The Tribunal does not have a general power to inquire into claims of unfairness which are outside of its jurisdiction. (emphasis added)

25For all the foregoing reasons, I conclude that the Tribunal does not have the jurisdiction to consider these Applications.