Chao v. Mon Sheong Home for the Aged, 2010 HRTO 1220

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Maidy Chao

Applicant

-and-

Mon Sheong Home for the Aged

Respondent

A N D B E T W E E N:

Maidy Chao

Applicant

-and-

Canadian Union of Public Employees, Local 2725,

Risa Pancer, Mon Sheong Foundation and Grace Lo

Respondents

interim decision

Adjudicator: Faisal Bhabha

Date: May 31, 2010

Citation: 2010 HRTO 1220

Indexed as: Chao v. Mon Sheong Home for the Aged

INTRODUCTION

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 discrimination on the basis of place of origin and disability in employment, and discrimination on the basis of disability as well as reprisal in employment. The respondents deny the allegations.

2In an Interim Decision, 2009 HRTO 2241, dated December 21, 2009, the Tribunal ordered that a one-day hearing be scheduled to address a number of preliminary issues. The hearing took place on April 29, 2010. No witnesses were called. The parties made oral submissions. The applicant made her submissions through an interpreter.

3This Interim Decision addresses the respondents’ request for dismissal.

BACKGROUND

4The applicant worked for the respondent Mon Sheong Home for the Aged (“Mon Sheong”) as a part-time Dietary Aide from May 2005 until November 2008. At the time that her employment ended, she had not worked since August 2006 for medical reasons. The allegations against Mon Sheong, Mon Sheong Foundation (the “Foundation”) and the personal respondent Grace Lo stem from events that began in December 2005 up to the time of her medical leave.

5There is no question that the applicant experienced significant workplace conflict during her active employment. She took the position that the workplace conflict amounted to discrimination, and caused her to become unable to work. There remains outstanding litigation involving a claim by the applicant for Workplace Safety and Insurance Benefits (“WSIB”) arising from the events that gave rise to her medical leave.

6In November 2006, the applicant’s bargaining representative, the respondent Canadian Union of Public Employees Local 2725 (“CUPE”) filed a grievance on the applicant’s behalf alleging harassment and discrimination in the workplace.

7CUPE communicated to Mon Sheong that the applicant had advised she was not capable of engaging in direct discussions or negotiations with the employer. CUPE and Mon Sheong decided to proceed with the grievance process in the applicant’s absence.

8Between March and October 2007, CUPE sought to arrange mediation with the employer. In early December 2007, the applicant retained independent counsel, who provided direction to CUPE with respect to the applicant’s settlement expectations. Shortly thereafter, CUPE and Mon Sheong met and the union tabled the applicant’s settlement proposal, which was rejected by the employer.

9In June 2008, the applicant filed a Duty of Fair Representation Application at the Ontario Labour Relations Board alleging violations by CUPE. In September 2008, that Application was withdrawn by the applicant. Meanwhile, CUPE and Mon Sheong agreed to appoint an independent mediator to attempt to resolve the applicant’s grievance. In early July 2008, a mediation was convened with mediator Stephen Raymond, but it did not result in a resolution. The applicant advised CUPE that she wished to proceed to arbitration.

10On November 19, 2008, the applicant, CUPE and Mon Sheong attended arbitration before arbitrator Mary Ellen Cummings. The applicant attended but did not sit in the same room as the respondents, and refused to testify. She was represented by union counsel, the personal respondent Risa Pancer.

11With the assistance of arbitrator Cummings, CUPE and Mon Sheong reached an agreement to settle the grievance. The arbitrator issued a decision incorporating the terms of settlement. It reads, in part:

I have spent time with Ms. Chao and with the union reviewing the complaints of discrimination and harassment and the grievor’s reactions to events that she alleges to have taken place in the workplace. I have also considered the grievor’s medical reports and any issues of disability that they raise. I have no doubt that Ms. Chao honestly believes that she has been treated badly in the workplace and that this alleged treatment has resulted in the illness that she suffers. I also appreciate the employer’s position that it has not engaged in any conduct that amounts to harassment or discrimination.

12The terms of settlement provided for a payment representing three weeks’ pay in lieu of notice, plus eight percent in lieu of benefits and four percent vacation pay. Mon Sheong also agreed to pay the applicant an amount of damages

in recognition of the grievor’s belief that she was not treated appropriately by the employer in response to workplace issues raised by her up to and including the date of this award.

13The applicant did not accept the terms of settlement and refused to sign the Minutes. She alleges that the she was under duress by the union, was not consulted during the negotiation of the terms of settlement, and felt that the award failed to reflect the extent of her suffering.

14Although the applicant did not agree to the terms of settlement, she did cash the payment cheque and received the benefit negotiated on her behalf by the union, though she maintained it was insufficient.

POSITION OF THE PARTIES

15Mon Sheong, the Foundation and Ms. Lo (“Mon Sheong respondents”) seek early dismissal of the Application on the basis of delay, on the basis of release language in the Minutes of Settlement, and on the basis of section 45.1 of the Code, meaning that the substance of the Application has been appropriately dealt with in another proceeding. In support of this Request, the Mon Sheong respondents argue that the allegations related to them date back to 2005 and 2006, more than one year prior to the filing of the Application in May 2009.

16The Mon Sheong respondents further argue that the allegations contained in the Application in respect of their alleged breaches of the Code are identical to the allegations encompassed by the grievance. They argue that the labour arbitration in November 2008, which resulted in a settlement endorsed in an arbitral award, fully and finally resolved all of those issues, and therefore the Application should be dismissed pursuant to section 45.1 of the Code. Finally, they argue that the applicant is bound by the full and final release contained in the Minutes of Settlement, dated November 19, 2008, which expressly releases the Mon Sheong respondents of any potential claims on the basis of the Code.

17CUPE and Ms. Pancer (the “union respondents”) also seek early dismissal. They also rely on section 45.1 of the Code and on the existence of a full and final release to argue that proceeding with the Application would amount to an abuse of process. The union respondents acknowledge that the allegations with respect to the union only arose in the summer of 2008 and therefore fall within the one-year limitation period in the Code.

18The applicant opposes the Request. Unrepresented, speaking through an interpreter at the hearing, and visibly distressed about the matters raised in the Application, it was difficult to ascertain precisely what her responding arguments are. She filed a document containing numerous allegations and statements that are of some assistance. The respondents expressed concerns about the scope and nature of the claims in the document. However, I am satisfied (since it might not have been so clear to the respondents) that the document assists in some regard in clarifying the applicant’s position.

19The essence of the applicant’s argument is, first, that she is not bound by the terms of the settlement (including the release) because she never agreed to those terms and refused to sign the Minutes. Second, she argues that the terms were insufficient and unfair, both in terms of the quantum of the payment, and because the Minutes included no admission of liability or wrongdoing by the Mon Sheong respondents. Regarding the delay issue, the applicant appears to take the position that the alleged discrimination occurred as part of an ongoing series of incidents that resulted in the denial of her rights under the Code.

DELAY

20The Tribunal’s power to hear and determine human rights applications is based on the Code. Section 34 of the Code provides as follows:

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.

21The date of the last discriminatory incident pleaded in the Application is November 19, 2008. That was the date of the arbitration that led to the settlement between CUPE and Mon Sheong. There is no question that is the focal event for the applicant’s allegations against the union respondents, who conceded in argument that the allegations as against them are not untimely.

22It is not, however, clear that any of the applicant’s allegations against the Mon Sheong respondents relate to November 19, 2008, beyond the applicant’s dissatisfaction with the content of the settlement itself. All of the matters addressed in the arbitration dealt with workplace issues from prior to when the applicant went off work. While the applicant was ultimately dissatisfied with the grievance process, that dissatisfaction was caused by the failure of the process to achieve a result with which she could agree, not by any additional alleged discriminatory events by the Mon Sheong respondents.

23I therefore conclude that the last possible date of alleged discrimination by the Mon Sheong respondents was August 2006, when the applicant went off work.

24Having established that the Application was filed late, the applicant must satisfy the Tribunal that the delay was incurred in good faith. In order to succeed, the applicant must provide a reasonable explanation as to why she did not pursue her rights under the Code in a timely manner. See Corrigan v. Peterborough Victoria Northumberland and Clarington Catholic District School Board, 2008 HRTO 424; Cartier v. Northeast Mental Health Centre, 2009 HRTO 1670.

25In December 2007, the applicant retained independent counsel. On June 30, 2008, amendments to the Code went into effect. Among other things, the time for filing an application was extended from six months to one year from the date of the last incident of discrimination.

26The applicant failed to provide an explanation as to why she did not file the Application against the Mon Sheong respondents until May 2009, nearly three years after leaving the workplace. The applicant had independent counsel, at least from December 2007, and prior to that she had union representation. It is clear that the applicant was fully aware of her rights in respect of her employer and made an express choice to pursue those rights in the context of the labour arbitration process. To the extent that she lost faith in that process, there was nothing preventing her from preserving her rights in the present forum by filing an application sooner.

27There can be no good faith where a party has both complete information and the opportunity to file an Application within the timeline and fails to do so. For this reason, I conclude that the Application as against the Mon Sheong respondents should be dismissed in its entirety for delay.

28This leaves just the allegations against the union respondents dating from the summer of 2008 up to November 19, 2008, which the union concedes are not time-barred. There is no basis to dismiss those allegations on the basis of either section 45.1 or the release.

ORDER

29The Tribunal orders as follows:

1. The Application in respect of the Mon Sheong respondents is dismissed for delay.

2. A hearing will be scheduled to hear evidence solely with respect to the union respondents’ liability for alleged Code breaches between May and November 2008.