Leclerc v. Community Living Huntsville, 2009 HRTO 848

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Heather Leclerc

Applicant

-and-

Community Living Huntsville

Respondent

-and-

Ontario Public Service Employees Union

Intervenor

INTERIM DECISION

Adjudicator: Alison Renton

Date: June 15, 2009

Citation: 2009 HRTO 848

Indexed as: Leclerc v. Community Living Huntsville

1This is an Application filed on February 4, 2009 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”). The applicant alleges discrimination in employment, housing, goods, services and facilities and membership in a vocational association on the basis of family status, age, record of offences, association with a person identified by a Code ground, and reprisal or threat of reprisal. The applicant provided over 30 pages of chronology and narrative as part of her Application.

2This Interim Decision will address:

• The Request to Intervene made by the applicant’s union, Ontario Public Service Employees Union (“the union”);

• The applicant’s allegations that she experienced discrimination on the basis of “record of offences”;

• The enumerated grounds and areas of alleged discrimination in the applicant’s allegations;

• The respondent’s Request that the Application be dismissed on the basis: i) another proceeding has appropriately dealt with the substance of the Application; ii) delay;

• The respondent’s alternative Request that the Application be deferred until the resolution of ongoing grievances.

REQUEST TO INTERVENE

3The union seeks to intervene in accordance with Rule 11 of the Tribunal’s Rules of Procedure. The applicant and the respondent have not submitted any materials in response to the union’s request to intervene and the deadline for doing so has now passed.

4The union represented the applicant in grievances that are referenced in the Application and in the respondent’s response. It has a significant interest in the outcome of the Application, including the remedial orders requested by the applicant. The union’s request to intervene is granted.

RECORD OF OFFENCES

5Section 10(1) defines record of offences as a conviction for:

(a) An offence in respect of which a pardon has been granted under the Criminal Records Act (Canada) and has not been revoked; or

(b) An offence in respect of any provincial enactment.

6In her Application, the applicant responded to the questions “Do you believe you were discriminated against because of your record of offences under a federal law (Criminal Code offence)?” and “Do you believe you were harassed or discriminated against because of your record of offences under provincial law (such as the Highway Traffic Act)?” in the negative. There is nothing in the Application suggesting the applicant was harassed or discriminated against as a result of a conviction for either offence.

7The applicant is required to deliver to the respondent and the union and file with the Tribunal submissions setting out precisely the manner in which it is alleged that the respondent discriminated or harassed her on the basis of record of offences. She is to deliver her submissions within fourteen days from the date of this Interim Decision. The respondent and the union are not required to respond to the applicant’s submissions on this point, unless directed to do so by the Tribunal. The Tribunal will consider whether to dismiss this allegation following receipt of those submissions or, if no submissions are delivered, after the time for their delivery has passed.

DELAY

8A number of incidents in the applicant’s chronology and narrative occurred more than one year before the date of the Application. The earliest events occurred in 1996. The respondent submits these allegations are therefore untimely and the applicant has not provided any reasons to explain her delay. In her Reply, the applicant submits that much of the initial factual background was provided for the Tribunal to appreciate the circumstances within which the alleged violations of the Code took place and to understand the Application in its proper historical context.

9Section 34 of the Code states:

(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.

10The applicant is directed to identify the events or incidents contained in the Application for which she intends to seek a remedy from the Tribunal and the date on which those events or incidents occurred. If any of these incidents or events do not fall within the limits of s.34(1) above, the applicant must explain why her delay was incurred in good faith and why no substantial prejudice will result to any person affected by the delay. The applicant must deliver this information to the respondent and the union and file it with the Tribunal within fourteen days of the date of this Interim Decision. If the respondent or union wish to respond to the applicant’s position, they must deliver written submissions to the parties and file them with the Tribunal, within fourteen days of receiving the applicant’s submissions.

ENUMERATED GROUNDS AND AREAS OF ALLEGED DISCRIMINATION

11The applicant alleges discrimination in employment, housing, goods, services and facilities and membership in a vocational association on the basis of family status, age, record of offences, association with a person identified by a Code ground, and reprisal or threat of reprisal. In her Reply, it appears that the applicant raises disability as a ground for discrimination for the first time.

12The applicant’s chronology and narrative are both lengthy and fail to clearly connect the allegations to the areas of discrimination and protected grounds. The applicant is directed to identify to the respondent and the union and file with the Tribunal what specific allegations are being made in support of each of the enumerated grounds upon which she has marked off on her Application (the “record of offences” ground is addressed above). She is further directed to identify which of the marked enumerated grounds applies to what area of alleged discrimination. The applicant is directed to deliver her material within fourteen days from the date of this Interim Decision. If the respondent or union wish to respond to the applicant’s position, they are directed to set out their position in writing and serve the applicant, the respondent or the union and the Tribunal within fourteen days of receiving the applicant’s submissions.

13If the applicant is seeking to allege harassment or discrimination under another enumerated ground (disability), then she is directed to request to amend her Application, identify the area of alleged discrimination, and set out her allegations in support of that alleged harassment or discrimination. If she is seeking to amend in this way, she is directed to deliver her material within fourteen days from the date of this Interim Decision. If the respondent or union wish to respond to the applicant’s position, they are directed to set out their position in writing and serve the applicant, the respondent or the union and the Tribunal within fourteen days of receiving the applicant’s submissions.

EARLY DISMISSAL OF THE APPLICATION

14The respondent requests that the Tribunal dismiss the Application because another proceeding has in whole or in part appropriately dealt with the substance of the Application. Specifically, the respondent submits that union grievances were filed by the applicant which proceeded before the Ontario Labour Relations Board that resulted in the parties signing Memorandums of Agreement. The respondent appended to its Response five Memorandums of Agreement and a decision of the Ontario Labour Relations Board.

15Section 45.1 of the Code provides:

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.

16In the circumstances, it is appropriate to determine as a preliminary matter the respondent’s request for an early dismissal of the Application because another proceeding has in whole or in part appropriately dealt with the substance of the application.

17The respondent is directed to set out its submissions in writing and deliver them to the other parties and file it with the Tribunal within twenty-eight days of this Interim Decision. If the applicant or the union wish to respond to the respondent’s position, they are directed to set out their position in writing and serve the respondent, the applicant or the union and the Tribunal within fourteen days of receiving the respondent’s submissions.

18Section 43(2) of the Code provides that the Tribunal shall not finally dispose of an application without affording the parties a change to make oral submissions. Accordingly, the Tribunal will schedule a hearing to address this issue, as well as the other issues set out herein.

REQUEST TO DEFER THE APPLICATION

19In its Response, the respondent also submits that the facts of the Application are part of grievances filed on the applicant’s behalf by the union which remain outstanding and that the parties were attempting to schedule the outstanding grievances to mediation in the spring of 2009. The respondent submitted that the Tribunal should defer the Application pending completion of the grievance proceedings. The union submitted that there is no mediation proceeding because no mediator has been selected and no mediation dates have been set. The union submitted that the mediation that the union and respondent were trying to arrange was not specific to the numerous workplace concerns that were raised by the applicant in the Application. The applicant supported the union’s position.

20The Tribunal will generally defer an Application where there is an ongoing grievance 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.

21The Tribunal’s Rules of Procedure (available on our website) provide that before a decision on deferral is made, the parties, and any identified union or affected party, must be given notice of the deferral issue and an opportunity to make submissions.

22The respondent is directed to deliver to the applicant and the union and file with the Tribunal within twenty-eight days of the date of this Interim Decision its submissions on whether the Application should be deferred pending the conclusion of the grievance(s). As part of those submissions, the respondent should specifically identify what factual allegations of the Application are addressed by the outstanding grievances. If the applicant or the union wish to respond to the respondent’s position, they are directed to set out their position in writing and serve the respondent, the applicant or the union and the Tribunal within fourteen days of receiving the respondent’s submissions.

ORDER

23The Tribunal makes the following orders:

1. The union’s request to intervene is granted;

2. Within fourteen (14) days of the date of this Interim Decision the applicant is required to deliver to the respondent and the union and file with the Tribunal:

a. submissions setting out precisely the manner in which it is alleged that the respondent discriminated or harassed her on the basis of record of offences. The respondent and the union are not required to deliver any submissions on this point unless directed to do so by the Tribunal;

b. an identification of the events or incidents contained in the Application for which she intends to seek a remedy from the Tribunal and the date on which those events or incidents occurred. If any of these incidents or events do not fall within the limits of s.34(1), the applicant must explain why her delay was incurred in good faith and why no substantial prejudice will result to any person affected by the delay;

c. what specific allegations are being made in support of each of the enumerated grounds upon which she has marked off on her Application (apart from the record of offences which is addressed separately) and which is the marked enumerated grounds applies to what area of alleged discrimination;

d. a request to amend her Application, identify the area of alleged discrimination and set out her allegations in support of that alleged harassment or discrimination if she wants to allege harassment or discrimination under another enumerated ground from what she marked off on her Application.

3. If the respondent and the union wish to respond to the applicant’s submissions in 2 a, b, c, d, they must deliver written submissions to the other parties and file them with the Tribunal within fourteen (14) days of receiving the applicant’s submissions;

4. A one-day hearing will be scheduled in which submissions will be heard on the following:

a. Should the Application be dismissed as a result of the proceedings before the Ontario Labour Relations Board and the Memorandums of Agreement that resulted from those proceedings?

b. Should the Application be deferred pending completion of the grievance procedure?

c. Should the Application be dismissed as being outside the Code’s limitation period?

d. Should the Application be amended pursuant to 2d if requested by the Applicant?

24I am not seized of this matter.