Dupuis v. Religious Hospitallers of St. Joseph of Cornwall, 2010 HRTO 1079

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Nathalie Dupuis

Applicant

-and-

Religious Hospitallers of St. Joseph of Cornwall and Denise Brownell

Respondents

-and-

Canadian Union of Public Employees (CUPE) and its Local 2717

Intervenor

INTERIM DECISION

Adjudicator: Jay Sengupta

Date: May 13, 2010

Citation: 2010 HRTO 1079

Indexed as: Dupuis v. Religious Hospitallers of St. Joseph of Cornwall

Appearances BY

Nathalie Dupuis, Applicant ) Chantal Tie and ) Clara Matheson, Counsel

Religious Hospitallers of St. Joseph of ) Andrea Risk, Counsel, and Cornwall and Denise Brownell, Respondents ) David Munday, Articling ) Student

Canadian Union of Public Employees (CUPE) ) Sue Lott, Counsel and its Local 2717, Intervenor )

Introduction

1This is an Application filed on January 20, 2009, under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). The purpose of this Interim Decision is to address a Request to Intervene made by the applicant's union, Canadian Union of Public Employees ("CUPE") and its Local 2717 ("the union"); consider the question of whether some or all of the issues raised in the Application are barred by virtue of section 34(2) of the Code; and to deal with the respondents' request for early dismissal of the Application under section 45.1 of the Code because another proceeding has dealt with all or part of the substance of this Application.

2The applicant has worked for the corporate respondent since 1992 in various positions, including as a dietary aid and health care aid. She was diagnosed with Multiple Sclerosis ("MS") in 1996 and continues to live with that medical condition. The workplace is unionized and, in fact, the applicant was a member of the executive of her union local for a number of years.

3Following an alleged incident of harassment that occurred on July 2, 2008, the applicant left the workplace for health-related reasons. She has not returned to active employment since that time.

4The applicant alleges that she was subjected to harassment and discrimination in respect of employment on the basis of disability and that she was subjected to reprisal or the threat of reprisal. The respondents, her employer and a supervisor at the workplace, are alleged to have failed to accommodate her disability, to have subjected her to harassment for reasons related to her disability and to have reprised against her for enforcing Code protected rights.

5The applicant takes the position that the request for accommodation made by her and supported by her physician was not appropriately or adequately dealt with. She alleges that although her doctor suggested she be assigned to an earlier shift, she was told to try and switch shifts with co-workers and make the arrangements herself and it was not until late in 2007, when there was a change in the physical location of the workplace, that she was assigned by the employer to the earlier shift.

6The Application also alleges that the applicant has been subjected to harassment by the personal respondent on the basis of disability since she began working with her in 2005. She alleges that she was subjected to sarcastic and demeaning comments and heightened monitoring and that the application of the Attendance Management Program ("AMP") to her was both a form of harassment and reprisal for her having asserted her rights under the Code and the collective agreement.

7The union filed two grievances on behalf of the applicant; one on June 15, 2007, and another in July 9, 2008. They were both withdrawn by the union following discussion of the issues raised in the grievance at labour management meetings held within a month or two following the filing of the grievances. The second of the two grievances was withdrawn in a letter including the phrase "without prejudice or precedence".

8The respondents take the position that the accommodation allegations are out of time and that the balance of the issues raised by the applicant ought to be dismissed pursuant to s.45.1 because the grievance process has been found to be a proceeding within the meaning of that section, and that the employer ought to be able to rely on the withdrawal of the grievance as a final resolution of the issue. They did not take the position that the harassment and reprisal allegations are barred by section 34(2) as untimely.

Request to Intervene

9During the hearing into the preliminary issues raised by the respondents, the Union made a request to intervene in accordance with Rule 11 of the Tribunal's Rules of Procedure. The Union sought to intervene as the preliminary issues raised by the respondent concerned the interpretation of the collective agreement. The union represented the applicant in grievances that are referenced in the Application and the respondents' Response and Request for Order.

10The union's request to intervene was granted during the course of the hearing into the preliminary issue and its submissions on the issues were considered at the conclusion of the preliminary hearing.

Delay

11Section 34(1) of the Code requires that an application be brought within one year of the incident to which it relates or, if there was a series of incidents, within one year after the last incident in the series. Section 34(2) allows the Tribunal to accept an application made beyond this time limit 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.

12The allegations made by the applicant include requests for accommodation with respect to her disability, specifically a request that she be assigned to earlier shifts and that the application of the AMP in her case take into account disability-related absences. The evidence I heard suggest that these requests for accommodation were discussed with the employer in June 2007. During cross-examination, the applicant acknowledged that the AMP was last applied to her in or about July 9, 2007, and that beginning in the winter months of 2007, she was working during the earlier shift, as her doctor had recommended. While the parties clearly disagree about whether the process leading up to that change was appropriately managed, I am satisfied that the incidents surrounding the accommodation issues appear, from the applicant's own evidence, to have last occurred before the end of 2007.

13As indicated, the Application was filed on January 20, 2009. It identified the last of the series of incidents as having taken place on July 2, 2008. The incident referenced relates to an allegation of harassment by the personal respondent that led to the applicant leaving the workplace. She has not returned to active employment since that time.

14The use of the word "series" suggests that the incidents thus referred to must be connected to each other. Having heard from the parties, it is not clear to me that the allegations of harassment that are alleged to have begun in 2005 and continued until the incident on July 2, 2008 are connected to the accommodation requests made in 2007. Certainly, I am satisfied that the issues surrounding the shift change are not part of the series in the present circumstances.

15I find that the dispute about appropriate accommodation is not sufficiently connected to the allegations of harassment that it can be considered part of a "series of incidents" with the harassment allegations. Insofar as the applicant alleges that actions taken by the respondents in relation to the AMP are part of the pattern of harassment as well as a reprisal, I will hear those allegations.

16It is clear from the evidence that the applicant was active in raising and pursuing workplace issues that impacted her. She was a member of the union executive at her workplace during the material time and aware of the processes available to her. I am not satisfied that the delay in bringing the accommodation issues before the Tribunal was incurred in good faith. In order to be satisfied that the delay was incurred in good faith, the Tribunal would require a reasonable explanation as to why the applicant did not or could not pursue her rights under the Code in a timely manner and the applicant has not provided one. Accordingly, it is not necessary for me to determine whether substantial prejudice would result to the respondents.

17The allegations concerning requests for accommodation made in 2007 will not proceed. I have considered the allegations concerning the remaining issues of harassment and reprisal in addressing the respondents' request for dismissal.

Respondents' Request for Dismissal under section 45.1 of the Code

18The respondents argue that the issues before the Tribunal have been raised in another forum, specifically the grievance process contemplated by the collective agreement in place in this workplace. They state that the grievances specifically reference the Code and are broadly enough worded to encompass all issues raised in this Application. Finally, they argue that the Application ought to be dismissed because the withdrawal of the grievances constitutes a final resolution of the issues as contemplated under s.45.1 of the Code, one that they argue the employer ought to have been able to rely upon. The respondent employer's main witness suggested that if the employer had known that the matter would be brought to another forum post-withdrawal, it would have forced it to arbitration.

19The union, in its submissions on this matter, points out that the right to grieve belongs to the union, that it has carriage of the grievance and advances it in consultation with the employee and in accordance with its obligations under section 74 of the Labour Relations Act, 1995, S.O. 1995, c. 1, Sched. A, as amended. The union also takes issue with the respondents' position regarding forcing the matter to arbitration and argues that the collective agreement is the final authority on these matters, and it specifies that unless the matter involves a policy grievance, the employer cannot advance the matter unilaterally to arbitration. Finally, the union argues that a withdrawal without prejudice or precedent means that the matter could be raised again. It agrees with the applicant's position that a statutory right cannot be extinguished simply because of past practice and that the respondents cannot rely on the fact that other similarly withdrawn grievances at their workplace have not been raised again in other forums.

20The applicant argues that a discussion at a labour management meeting cannot be considered a proceeding within the meaning of the Code, that there is no indication that the substance of the all matters before the Tribunal were even raised in that context, that the withdrawal of the grievances by the union cannot bind the applicant and that there is no indication that the subject matter of the grievances were dealt with appropriately or, in fact, at all before they were withdrawn.

21In Campbell v. Toronto District School Board, 2008 HRTO 62, the Tribunal discussed some principles that apply to the interpretation of s. 45.1. They include:

• Section 45.1 gives expression to a legislative intent to avoid the duplication of proceedings and the re-litigation of issues that have been dealt with elsewhere;
• The discretion given to the Tribunal in s. 45.1 is at least as broad as the doctrines of issue estoppel and abuse of process;
• In determining whether another proceeding has appropriately dealt with the substance of the application, the Tribunal should not be overly technical;
• The Tribunal does not act as an appellate court from the decisions of other tribunals, and the Tribunal need not be satisfied that it would have reached the same conclusion as that reached in the other forum.

Some of the factors the Tribunal found relevant to the exercise of its discretion to apply s. 45.1 in that case, which dealt with a decision by another tribunal as opposed to a settlement of its proceedings, were the purpose of the statutory scheme governing the other proceeding, whether the same question was decided, whether human rights principles were applied, and the safeguards available to the parties in the other administrative procedure.

22Having considered the factors outlined in Campbell, and the Tribunal's jurisprudence in other situations involving matters addressed through grievance processes including Dunn v. Sault Ste Marie (City), 2008 HRTO 149, and the authorities provided by the parties, I cannot agree with the respondents' assertion that a grievance withdrawn by the union that has carriage of the matter after a labour management meeting attracts the application of section 45.1, absent a settlement or evidence of the express consent of the applicant.

23There is no indication in either grievance involving the applicant that she signed minutes of settlement or that she expressly consented to the withdrawal of the grievance by the union. Although she was present for some of the discussions relating to her grievances, the evidence of both the applicant and members of the executive of the local involved in the processes was that the applicant was not satisfied with the results of the labour management meetings and that she made it clear to the union after the meeting during which the July 2008 grievance was discussed that she intended to file an application with the Tribunal and the grievance was withdrawn by the union knowing her intentions.

24As such, there is no evidence before me to conclude that the substance of the balance of the allegations concerning harassment and reprisal has been appropriately dealt with in another proceeding.

25The respondents' preliminary request for dismissal is denied. The hearing into the remaining allegations not barred by s.34(2) will begin as scheduled.