Tammy Parliament v. Metro Ontario Inc. and John Burke, 2010 HRTO 1609

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Tammy Parliament Applicant

-and-

Metro Ontario Inc. and John Burke Respondents

-and-

Canadian Autoworkers Union Intervenor

INTERIM DECISION

Adjudicator: Michelle Flaherty Date: July 28, 2010 Citation: 2010 HRTO 1609 Indexed as: Parliament v. Metro Ontario

1This Application was filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). Although the Application is incomplete and question five has not been answered, it appears that the Application alleges discrimination on the basis of disability in the context of employment.

2In essence, the applicant states that the respondent discriminated against her by failing to consider her for a promotion because of her physical limitations. The Application also contains a number of allegations of unfair treatment. However, based on the materials filed, it is not clear how this allegedly unfair treatment relates to a protected ground (such as disability, gender, race) under the Code.

3The respondents have filed a Response denying the allegations of discrimination and seeking the dismissal of the Application on the basis that its substance has already been appropriately dealt with in a grievance proceeding. In the alternative, the respondents seek the deferral of the Application pending the completion of the grievance process.

4The applicant has filed a Reply objecting to the deferral and the dismissal.

5The applicant's union, the Canadian Autoworkers Union ("Union") has filed a Request to Intervene. It does not seek to participate in the proceeding, but wishes to reserve the right to make representations about its conduct, should that issue be raised by the applicant.

6The applicant has filed a Response to the Request to Intervene. The Response is largely blank and does not seem to take any position regarding the Request to Intervene.

REQUEST TO DISMISS OR DEFER

7The respondents' position on these preliminary issues is contradictory. On the one hand, they argue that a final determination of the grievance was reached on December 11, 2008, when the corporate respondent rejected the grievance and the Union decided not to appeal the decision or refer the matter to arbitration. On the other hand, however, the respondents argue that the Application should be deferred based on an ongoing grievance proceeding.

8Based on the information provided by the respondents regarding what they say was the "final determination of the grievance", there is no basis for me to conclude that the grievance proceeding is ongoing. Accordingly, the request to defer is denied.

9The respondents submit that the subject matter of the Application has been appropriately dealt with because the Union decided not to appeal the corporate respondent's denial of the grievance.

10In her Reply, the applicant states that she did not agree with the Union's position and that she appealed its decision though the Union's internal process. I understand that this appeal was either unsuccessful or has yet to be determined.

11There is no information before me suggesting that the parties reached a settlement, that the applicant had any role to play in the Union's decision-making, or that the applicant understood and agreed that her concerns had been appropriately dealt with through the grievance process.

12This Tribunal has generally accepted that where a grievance dealing with substantially the same subject matter as an application has been settled by the parties, section 45.1 may apply to bar all or part of an application. Conversely, the Tribunal has held that the requirements of section 45.1 are not met where a grievance has been withdrawn unilaterally by a union: see Paterno v. Salvation Army, Centre of Hope, 2010 HRTO 10.

13In the circumstances of this case and based on the materials before me, I cannot conclude that the requirements of section 45.1 have been met. There is no basis for me to conclude that the applicant agreed with the decision not to pursue the grievance. Nor, applying the reasoning from Shannon v. Renfrew (County), 2010 HRTO 930, is there any basis for me to conclude that she agreed and understood that the grievance process had appropriately dealt with her concerns.

14Accordingly, the respondents' Request to Dismiss is denied.

UNION'S REQUEST TO INTERVENE

15The Tribunal indicated in Boyce v. Toronto Community Housing Corporation, 2009 HRTO 131, that:

A union or association nearly always has an interest in a human rights application brought by an employee in a bargaining unit it represents when the application alleges discrimination in employment. Absent exceptional circumstances, the applicant's bargaining agent will be granted intervention status in Tribunal proceedings where it requests it.

16I am satisfied that the Union has the requisite interest in this Application. The Union is granted leave to intervene. Should the Application proceed to a hearing, the scope of the Union's intervention will be determined by the adjudicator at the hearing.

NEXT STEPS

17As I indicated earlier, it is not clear to me that many of the allegations contained in the Application relate to the Code.

18However, as the parties have agreed to take part in mediation, the Registrar will schedule a mediation date. If a settlement is not achieved at mediation, the Tribunal may take steps to determine the proper scope of the Application.

19I am not seized of this matter.