Wardle v. Ottawa (City), 2010 HRTO 1458

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Margery Wardle

Applicant

-and-

City of Ottawa, Canadian Union of Public Employees and Canadian Union of Public Employees, Local 503

Respondents

INTERIM DECISION

Adjudicator: Michelle Flaherty

Date: July 5, 2010

Citation: 2010 HRTO 1458

Indexed as: Wardle v. Ottawa (City)

1The applicant filed an Application under s. 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”), alleging discrimination on the basis of disability, sex, and sexual orientation in the context of employment. She also alleges reprisal or threat of reprisal.

BACKGROUND

2In essence, the applicant alleges that she complained that pornography was being displayed in the workplace. Although she alleges the respondents did not initially address her complaints, she states that by December 2000, the pornography issue had been remedied. She alleges that she began to suffer reprisal measures beginning in January 2001 and ending in August of 2008.

3The applicant has been in receipt of long-term disability benefits (and not actively employed) since September 2004. She alleges that the following reprisal measures continued even after her departure from the workplace: she was contacted repeatedly at home while on medical leave and her grievances were withdrawn or held in abeyance.

4The City of Ottawa (“City”) submitted a Response in which it denies the allegations of discrimination and argues that the Application should be dismissed because it was filed more than one year after the last incident of discrimination. In the alternative, the City asks that the Application be deferred pending the outcome of an ongoing grievance proceeding. It also argues that there is no prima facie case of discrimination against the City.

5The Canadian Union of Public Employees (“CUPE”) and the Canadian Union of Public Employees Local 503 (“Local 503”) each filed a Response.

6Local 503 submitted a Response in which it denies the allegations of discrimination. It argues that there is no prima facie case of discrimination against Local 503 and that, even if the allegations against Local 503 are true, they do not amount to discrimination under the Code. Local 503 also argues that the Application is untimely and, in the alternative, Local 503 asks that the Application be deferred pending the outcome of ongoing grievance proceedings.

7CUPE submitted a Response in which it denies the allegations of discrimination and argues that the Application is untimely, that there is no prima facie case against it, and that the Tribunal has no jurisdiction because the matter arises in the labour relations context.

8The applicant filed a Reply on February 11, 2010, indicating that she required additional time to respond to the Responses filed by the respondents. She filed a further Reply on February 24, 2010, indicating that she has not received complete copies of the Responses filed with the Tribunal.

9On May 27, 2010, the Tribunal forwarded complete copies of the Responses to the applicant and directed the applicant to provide submissions on the issues of deferral and timeliness to all parties and to the Tribunal by June 10, 2010. The Tribunal advised that it would consider the submissions on deferral and timeliness before considering the prima facie case issues raised by some of the respondents.

10The applicant did not file submissions in response to the Tribunal’s May 27, 2010 letter and the time for doing so has elapsed.

DEFERRAL

11Local 503 submits that six grievances were filed on behalf of the applicant. Two were withdrawn and the four remaining have been placed in abeyance pending the applicant’s return to work or such time that further direction could be obtained from the applicant. Local 503 submits that, because the applicant has failed to stay in contact with it, Local 503 has had no option but to put the four outstanding grievances in abeyance.

12The 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 the particular circumstances of each case, whether deferral is the most fair, just and expeditious way of proceeding with the Application.

13Some of the factors that may be relevant in deciding whether to defer consideration of an application before the Tribunal are the subject matter of the other proceeding, the nature of the other proceeding, the types of remedies available in the other proceeding, and whether it would be fair overall to the parties to defer the Application, having regard to the status of each proceeding and the steps that have been taken to pursue them.

14While the subject matters of the grievances and the Application may overlap, the material before me suggests that, even if the Application is not deferred, it is unlikely the grievances and the Application will be heard concurrently. The status of the grievances is such that no hearing dates have been set nor will they be set unless the applicant takes some further steps, either by returning to work or by communicating with Local 503 and providing instructions regarding the grievances.

15In the circumstances, given that the grievances are being held in abeyance indefinitely, I am not satisfied that it would be appropriate to defer the Application. The respondents’ request to defer the Application pending the determination of the grievance is dismissed.

TIMELINESS

16Section 34 of the Code allows applications alleging infringements of rights under the Code to be made within one year’s time of the alleged incident or the last incident in a series. It also gives the Tribunal discretion to accept late applications in certain circumstances. Section 34 states:

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.

17Accordingly, the Tribunal will not deal with an application filed more than a year after the incident, or a last incident in a series, unless it is satisfied that:

a. the delay was incurred in good faith; and

b. no substantial prejudice will result to any person affected by the delay.

18It is clear that a number of the allegations contained in the Application relate to incidents well outside the one year limitation period. At issue is whether there are allegations of discrimination that fall within the one year period and that constitute part of a series of incidents for the purposes of the Code.

19The Application was filed on August 7, 2009. The only allegations contained in the Application that clearly occurred within the one year period prior to filing are that grievances were placed in abeyance on August 8, 2008. The applicant also alleges that she was contacted while on medical leave from May 2004 onwards. The Application does not, however, specify who attempted to contact her, when those attempts ceased, or why she feels they were incidents of discrimination pursuant to the Code.

20In my view, at this early stage in the Application, there is insufficient evidence for me to determine whether there was an ongoing series of incidents of alleged discrimination which brings the Application within the limitation period set out in the Code.

21Within fourteen days of the date of this Interim Decision, the applicant is required to provide to the parties and file with the Tribunal written submissions addressing:

a. which respondent attempted to contact her while she was on medical leave;

b.when these attempts occurred and, if they have ceased, when they ceased;

c. why she feels attempts to contact her while she was on medical leave constitute discrimination pursuant to the Code.

22If the applicant fails to provide such submissions or otherwise communicate with the Tribunal, the Application may be decided based on the materials already filed or may be dismissed as abandoned.

23I am not seized with this matter.