Healey v. McMaster University, 2010 HRTO 1874

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kimberly Healy

Complainant

-and-

McMaster University, Dale Schenk and Peter George

Respondents

AND B E T W E E N:

Kimberly Healy

Applicant

-and-

National Automobile, Aerospace, Transportation and General

Workers Union of Canada (CAW-Canada), Local 555

Respondent

• and –

Ontario Human Rights Commission

Commission

INTERIM DECISION

Adjudicator: Leslie Reaume

Date: September 14, 2010

Citation: 2010 HRTO 1874

Indexed as: Healey v. McMaster University

AppearanceS BY

Kimberly Healy, ) Self-represented Complainant/Applicant ) )

Ontario Human Rights Commission ) Prabhu Rajan, ) Counsel

McMaster University, ) George Avraam, Dale Schenk and ) Counsel Peter George, Respondents )

National Automobile, Aerospace, ) Lewis Gottheil, Transportation and General Workers ) Counsel Union of Canada (CAW-Canada), ) Local 555, Respondent )

introduction

1The complainant filed a Complaint with the Ontario Human Rights Commission, against her former employer, McMaster University (“employer”), on April 20, 2005. The complainant, who was terminated from her employment, alleges discrimination on the grounds of sex, marital status, family status and disability. On May 13, 2005, she filed a second Complaint with the Commission against her former bargaining agent, the McMaster University Staff Association (now CAW Canada and Local 555) (“union”). In that Complaint, she alleges discrimination by the union for failing to properly advance her grievances against the employer.

2The Complaint against the employer was referred to the Tribunal by the Commission. The Complaint against the union was abandoned at the Commission with the filing of this Application to the Tribunal pursuant to section 53(5) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended. The Complaint and the Application are being heard together.

3Prior to the filing of the two human rights Complaints, the complainant had been involved in a grievance/arbitration process which resulted in Minutes of Settlement dated June 28, 2004. The complainant refused to sign the settlement, although she did not refuse, among other things, the equivalent of 14 months salary and benefits provided for in the agreement.

4On July 16, 2004, the complainant filed an application with the Ontario Labour Relations Board (“OLRB”) alleging that the union had breached its duty of fair representation pursuant to section 74 of the Ontario Labour Relations Act 1995, S.O. 1995, c. 1, Sched. A, as amended (“LRA”). That application was dismissed by a Vice Chair of the OLRB on October 28, 2004 and a request for reconsideration was also dismissed.

5This Interim Decision addresses two Requests, one filed by the employer and the other by the union, seeking dismissal of the respective human rights Complaint and Application. Both respondents argue that other proceedings have appropriately dealt with the substance of the Complaint and Application pursuant to section 45.1 of the Code and, alternatively, that it would be an abuse of the Tribunal’s process to allow the matters to proceed. The employer relies on the terms of the settlement achieved through the grievance/arbitration process. The union relies on the section 74 application decided by the OLRB. The Requests are opposed by the complainant and the Commission.

Background

6The complainant started working for the employer in October 1990. Her employment was terminated on March 25, 2004. The complainant was represented at the time by her bargaining agent, McMaster University Staff Association (“MUSA”), which has since elected to join CAW-Canada.

7The complainant alleges that she began to have difficulties at work when she returned from her maternity leave to a new position in the Centre for Continuing Education. In that position she reported to Dale Schenk, who is named as a personal respondent in the Complaint against the employer. Up to that point, she had been employed with the university for 23 years, and the complainant alleges that she had no record of performance problems or disciplinary issues.

8The complainant alleges that prior to her termination she was subjected to differential treatment and harassment in employment on the basis of sex, family status, marital status and disability, as well as reprisal for having raised concerns about those experiences. She alleges she was not supported in relation to child care issues; counselled repeatedly; disciplined; forced to take medical leave; compelled to undergo a psychiatric assessment; and, ultimately terminated from her employment for reasons related to the prohibited grounds set out in her Complaints.

9The employer denies the allegations of discrimination and argues that the actions complained of were taken in the normal course of performance management. The respondent alleges that the complainant displayed “unusual and problematic behaviour” in the workplace and that she was aggressive and confrontational with co-workers.

10The complainant alleges that she took her concerns about discrimination and harassment to the union but had difficulty convincing the union to file grievances on her behalf. In the end, three grievances were filed, two of which related to improper discipline and one which related to the termination. Without going into great detail, I understand that the complainant alleges that the union refused to file further grievances because it was operating under the same stereotypical assumptions about women and persons with disabilities as she alleges against her employer. I will say more about this allegation later in this Interim Decision.

11The matter was referred to arbitration and scheduled for June 16, 2004. The parties agreed to mediation with the arbitrator. An agreement was reached between the employer and the union and minutes of settlement were signed by them on June 28, 2004.

12The complainant refused to sign the minutes of settlement. She did, however, receive the equivalent of 14 months salary and full benefits, roughly three months of which was paid to her by way of an interim agreement with the employer pending the outcome of the arbitration. The minutes of settlement also provided for the removal of all counselling and disciplinary letters from the complainant’s personnel file, a letter of employment, and a letter of regret from the employer.

13On July 16, 2004, the complainant filed her section 74 application with the OLRB which was dismissed on October 28, 2004. The complainant also attempted to bring her concerns about her employment experiences to the attention of the McMaster Board of Governors, as well as the Minister of Labour and the Ministry of Labour’s Industrial Health and Safety Program. The Board of Governors and the Minister of Labour denied the complainant’s request and no orders were ever issued by the Ministry of Labour under the Occupational Health and Safety Act, R.S.O. 1990 c. O.1, as amended (the “OHSA”).

14The complainant then filed the human rights Complaints against the employer and the union.

Section 45.1

15The employer and the union argue that the complainant’s human rights allegations were appropriately dealt with in the context of the settlement arising from the grievance/arbitration proceeding, as well as the section 74 application, and should therefore, be dismissed pursuant to section 45.1 of the Code.

16Section 45.1 of the Code provides as follows:

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.

17Both the grievance/arbitration process which resulted in the settlement between the employer and the union, and the section 74 application filed by the complainant against her union, have been found by the Tribunal to constitute a “proceeding” for the purposes of section 45.1. See Dunn v. Sault Ste. Marie (City), 2008 HRTO 27, (“Dunn”); Van Barneveld v. I.O.O.F. Seniors Home, 2008 HRTO 329, (“Van Barneveld”).

18The remaining question is whether the substance of the human rights Complaint and Application have been appropriately dealt with by those proceedings.

The Section 74 Application

19The substance of the human rights Application against the union is that the union discriminated against the complainant by failing to advance grievances based on her allegations of sexual harassment and stereotyping; that it treated her on the basis that it perceived her to be mentally ill; and that the union improperly settled her case with the employer despite her protests.

20I note here that there appears to be a dispute between the complainant and the union on what constitutes sexual harassment. The complainant contends that she was advised by members of the union that sexual harassment was defined by physical touching. If this is true, the union is obviously incorrect. On the other hand, the complainant appears to be describing as “sexual harassment”, experiences which are related to gender discrimination and stereotyping but not necessarily sexual in nature. It is not my role to resolve this dispute. I comment on it here because the union’s refusal to define sexual harassment on the terms suggested by the complainant plays an important role in her allegations against the union in both the human rights Application and the section 74 complaint.

21The substance of the section 74 application filed with the OLRB, is that the union agreed to a resolution of her grievances against the employer without her authorization. She also alleges that her employment was terminated without having the opportunity to fully refute the allegations made against her in a process where she could seek to be reinstated. No allegations of discrimination appear in the original application. However, the complainant was later given an opportunity to particularize her allegations, which I comment on below.

22In response to the filing of the Section 74 application, both the union and the employer took the position that the application did not disclose a prima facie case.

23On August 26, 2004, the Board released an Interim Decision describing the nature of the application and the fact that the complainant had filed a binder of materials setting out the chronology of events leading up to the eventual termination of her employment. The Vice Chair also indicated her intention to deal with the application on the basis of the written materials only. In her decision she explained the objection made by the employer and union, identified the issues the complainant needed to address, described the appropriate legal test, and gave the complainant the opportunity to file further materials in response.

24The applicant then wrote to the OLRB providing further details of her allegations against the union. In her letter dated September 9, 2004 to the OLRB, she raised the issue about the union failing to file a sexual harassment grievance, alleging that the attitude of the union toward women was discriminatory. She also raised the concern about the union’s handling of the employer’s requests for medical and psychiatric assessments, alleging that the union discriminated against her on the basis of perceived mental disability. She also raised concerns about the failure of the union to provide her with the evidence filed by the employer in support of the termination so that she could have an opportunity to refute their claims.

25For the purpose of this Request, the union filed the material which was before the OLRB Vice Chair on the section 74 application. Having reviewed those documents in detail, I am satisfied that the substance of the human rights Application against the union and the substance of the section 74 application are the same.

26On October 28, 2004, the Vice Chair issued her decision dismissing the section 74 application. The complainant’s submissions are reflected in the decision. The Vice Chair dealt squarely with the allegation that the union refused to file a sexual harassment grievance because of discriminatory attitudes against women. The Vice Chair found that if the conversation occurred in the way that it was described by the complainant, the union would be operating under an erroneous definition of sexual harassment. However, she found that this fact alone was not sufficient to support the applicant’s allegation that the actions of the union toward her were discriminatory.

27The Vice Chair also dealt with the complainant’s allegations that she was perceived to be mentally ill by her union. Again, she found that even if the union had erroneously perceived her to be mentally ill, she alleged no facts on which it could be found that the union had engaged in conduct toward her which could constitute discrimination.

28The question before the Vice Chair on the section 74 application was whether the union’s refusal to take the grievances forward was arbitrary, discriminatory or in bad faith. She found no basis for the applicant’s claim.

29I agree with the decision in Campbell v. Toronto District School Board, 2008 HRTO 423 (“Campbell”) that this Tribunal does not act as an appellate court from a decision of another tribunal. In a Request under section 45.1, the question is not just whether the substance of the human rights complaint was dealt with, but whether it was appropriately dealt with, in the other proceeding. This will necessitate some level of review and scrutiny of the process and outcome the other proceeding. In my view, the threshold is higher than simply ensuring that the substance of the human rights complaint was dealt with by a decision-maker in a process which meets some minimum standards of fairness. On the other hand, I agree that the threshold cannot be so high that the result would be to substitute my own decision-making for that of the other adjudicator.

30In this case, I find that the substance of the human rights Application against the union was appropriately dealt with in the decision of the Vice Chair on the section 74 application. In coming to this conclusion I have taken into consideration a number of factors which I set out below. My purpose in setting out these factors is not to suggest a test, but to make as clear as possible to the parties those considerations which I found compelling in the particular circumstances of this case:

a) In addition to the general proposition that all decision-makers are required to apply the Code in a manner consistent with prevailing human rights norms, the Vice Chair, in these circumstances, was appointed under the LRA. There is a long history of overlap between labour and human rights which has given rise to a level of expertise in determining human rights issues within a labour matrix.

b) The duty of fair representation requires the union to act in a non-discriminatory manner toward its members and the section 74 application was adjudicated on the basis of this requirement.

c) It was clear from the decision that the substance of the human rights complaint against the union was considered by the Vice Chair.

d) The Vice Chair applied legal principles which are consistent with prevailing human rights norms in considering the issue of discrimination.

e) The complainant had standing to bring the application in her own right and she had access to a mechanism for reconsideration.

f) The complainant was afforded the opportunity to fully plead the circumstances of her case. The first decision by the Vice Chair set out, in clear terms, the test the applicant was required to meet and she was given an additional opportunity to particularize her allegations.

g) The core allegations of discrimination relate to the conduct of the employer. The allegations against the union are related to the complainant’s efforts to seek a remedy against her employer and her ability to do so is not foreclosed by dismissing her human rights complaint against the union.

31The substance of the human rights Application against the union was before the OLRB and I see nothing in either the process or the outcome which would concern me in concluding that the issues were appropriately deal with. I turn now to the Complaint against the employer.

The Employer/Union Settlement

32The substance of the complainant’s human rights Complaint against the employer is that she experienced discrimination on the basis of sex, family status, marital status and disability at work as described above. The employer disputes these complaints and takes the position that their actions were consistent with both their concern for the complainant’s well being and established performance management standards.

33The Tribunal has previously determined that settlements achieved in the context of a labour arbitration are “proceedings” for the purposes of section 45.1. While I do not disagree with this approach, there are obvious complexities associated with determining whether the substance of a settlement achieved through a mediation has “appropriately dealt with” the substance of the human rights complaints.

34In this case, there is no decision to scrutinize, no release signed by the complainant, no mention of discrimination in the Minutes of Settlement, and no process to assess given that the mediation took place, for good reason, outside of the more open hearing phase of the arbitration process.

35The fact that the complainant refused to sign the agreement is a consideration, but it is not, in my view, determinative. The union is authorized to dispose of the complainant’s grievances whether or not she agrees with the outcome as long as the union is acting in a manner which is not arbitrary, discriminatory or in bad faith. The fact that a complainant signed an agreement arising out of a termination grievance is similarly not determinative. See Therrien v. Ontario Public Service Employees Union, 2010 HRTO 382. The question in each case is whether the substance of the human rights complaint was appropriately dealt with by the settlement.

36Is the substance of the human rights complaint the same as the substance of the settlement? There is clearly some overlap between them. The settlement contains a preamble which cites the complainant’s allegation that she was “improperly and unjustly terminated from her employment”. The settlement also contains provisions removing all counselling and disciplinary letters and documents from the complainant’s personnel file, a letter of employment, and a letter of regret.

37There is no reference to discrimination in the agreement. Similarly the release contains no reference to the Code although it provides the employer with the assurance that the union will not pursue any further claims of any kind arising out of the grievances filed on the complainant’s behalf.

38The collective agreement contains a provision, article 8, which precludes harassment and discrimination. There are three grievances underlying the agreement which were filed under the terms of the collective agreement. None of the grievances explicitly references discrimination or article 8 of the collective agreement. Although the union did not take a position on the implications of the settlement for the complainant’s ability to pursue her human rights complaint against the employer, the union did take the position that the grievances were drafted in a manner which was sufficiently broad to capture any and all of the complainant’s allegations of discrimination.

39There is, however, a significant dispute between the union and the complainant about the extent to which her allegations of discrimination were encompassed by the three grievances filed on her behalf. The complainant alleges that the union refused to file any grievances which directly related to her allegations of discrimination and she expressed a lack of confidence that the union would have pursued those issues at arbitration. Again, it is not my role to resolve this dispute, but the fact that such a dispute exists is relevant in determining whether the allegations of discrimination were appropriately dealt with by the settlement.

40The employer argues that the complainant’s human rights allegations have been appropriately dealt with through the settlement of her grievances. Unlike the analysis of the section 74 decision, here I am being asked to make a number of inferences to ground a decision that the substance of the settlement and the human rights complaint are the same: that discrimination and harassment are prohibited under the collective agreement; that the grievances were animated by this important underlying principle; and that IF the matter had proceeded to arbitration, the complainant’s allegations would have been squarely before the decision-maker.

41In addition, I am being asked to consider the fact that the complainant took the benefit of the settlement, despite her protests, as an admission that all of her issues with the employer were dealt with. I have given careful consideration to the employer’s concern about the complainant having benefited from the agreement and I deal with this argument more fully in addressing abuse of process below.

42In Campbell, the Tribunal noted some of the guiding principles underlying the analysis of section 45.1, abuse of process and issue estoppel, including the importance of finality in litigation and an appreciation and respect for the choice made by the province of Ontario to empower other decision-makers to deal with human rights issues. The Tribunal also set out this important consideration:

First, the Code is an important public policy statute, protecting rights which are quasi-constitutional in nature. Those rights would be meaningless without access to a mechanism for their enforcement – the right to pursue a complaint under the Code should therefore not be denied absent a compelling reason.

43In Dunn, the Tribunal stated that “there is a strong public interest in ensuring that when parties freely choose to resolve the substance of a human rights dispute, in whatever forum it is brought, the matter is at an end”. However in Van Barneveld the same Vice-chair of the Tribunal commented:

I note that in most unionized workplaces, the only formal parties to the grievance are the union and the employer. I make no comment or finding in this case about the effect of an agreement between the union and the employer to which the grievor/applicant is not a party.

In both of these cases, the grievor had signed the settlement.

44Given the importance of the issues, I am not prepared to draw the inferences which would be necessary, in this case, to establish that the substance of the settlement and the human rights allegations are similar enough to conclude that they have been appropriately dealt with by the settlement. I am also not prepared to conclude that the settlement has appropriately dealt with part of the allegations, namely the fact that the complainant was terminated. Although the settlement deals with the termination, the allegations which underlie the termination have not been determined in any forum and therefore I have concluded that the complainant may proceed to have those allegations dealt with by the Tribunal.

45With respect to the payments already made to the complainant, they are relevant to the issue of remedy. At the conclusion of the hearing, if the Complaint is upheld by the Tribunal, it is open to the employer to ask the Tribunal to consider the issue of deducting that sum from any award the Tribunal is inclined to make at that time.

Abuse of Process

46Having concluded that the Application against the union will not proceed, it is unnecessary for me to deal with the union’s arguments in relation to abuse of process.

47With respect to the employer, I have already made a finding that there is no other proceeding which has appropriately dealt with the complainant’s allegations and therefore it cannot be said to be an abuse of process to allow the complaint to proceed on that basis. In other words, I do not intend to scrutinize the settlement process a second time to determine whether it meets the test of abuse of process. Had the Request been made on the basis of abuse of process alone, and not section 45.1, I would have applied the factors in Snow v. Honda of Canada Manufacturing, 2007 HRTO 45 and arrived at the same result.

48However, the employer has raised the allegation that the complainant accepted the proceeds of the settlement and intentionally delayed in filing her complaint until the payments by the employer were almost complete.

49It would be too simplistic to suggest that the compensation paid by the employer was the price they paid for finality with the union and the grievance process. Clearly the employer had an expectation of finality in relation to its dealings with the complainant as well. That expectation was reinforced over the months between the settlement of the grievances and the filing of the human rights complaint when the complainant was accepting full salary and benefits. I do not know all of the reasons behind the timing of the filing of the Complaint with the Commission. However, it was accepted by the Commission and although the investigator recommended dismissal, ultimately the Complaint was referred to Tribunal for a hearing on the merits.

50The complainant’s position was that the compensation under the settlement agreement was less than what she felt she was entitled to. In addition, three months of it was received during the interim period after termination but before the settlement was signed. The complainant described herself as a single mother who could not afford to reject the payments.

51I am concerned that a finding in favour of the employer, in these circumstances, would signal that only those people in the enviable position of being able to reject ongoing payment of their wages at termination would be able to pursue their human rights complaints. The Code plays an important role in the protection of vulnerable and marginalized citizens of Ontario. I would have to have a compelling reason for denying the complainant access to the Code on the basis that she accepted ongoing salary payments from the employer where the substance of her human rights allegations were not addressed by the agreement which gave rise to the payments.

52On that basis, this case may be distinguished from others where the Tribunal has found that the substance of a human rights application has been appropriately dealt with despite the fact that the complainant did not sign the Minutes of Settlement, including circumstances where they disagreed with the terms upon which the union agreed to resolve the grievances. See for example, Bhandari v. Ontario (Education), 2010 HRTO 1676 where the Tribunal finds that “there is no doubt” that the grievances and the human rights Complaint covered the same matters in dismissing the Application.

53For all of those reasons, the Request by the union is granted and the Application in Tribunal File TR-0258-09 is dismissed. The employer’s Request to dismiss Tribunal File HR-1816-08 is refused and the complaint will proceed. The Registrar-Transition will contact the parties to arrange a Pre-hearing Conference Call to establish a process for moving the Complaint forward.