Johnson v. Alcohol and Gaming Commission of Ontario, 2010 HRTO 1948

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Coral Johnson

Applicant

-and-

Alcohol and Gaming Commission of Ontario, Heather Maclean, Jean Major, David Chiacchia, Michael Falconi, Sukhi Grewal, Laura Fees, Suchitra Hari and Teresa Tedesco

Respondents

-and-

Ontario Public Services Employees Union

Intervener

INTERIM DECISION

Adjudicator: Ena Chadha

Date: September 24, 2010

Citation: 2010 HRTO 1948

Indexed as: Johnson v. Alcohol and Gaming Commission of Ontario

1The applicant filed an Application on April 21, 2010, under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), in which she alleges discrimination and reprisal with respect to employment on the basis of ethnic origin, disability and sex.

2The Application pertains to events arising out of the applicant’s Occupational Health and Safety Act, R.S.O. 1990 c. O.1 (“OHSA”) complaints and proceedings before the Ontario Labour Relations Board (“OLRB”). The applicant alleges that she experienced discrimination because of certain comments and settlement exchanges that occurred on April 21, 2009, during an OLRB mediation meeting, as well as subsequent communications and correspondence arising out of, or failing to arise out of, that mediation. The applicant further claims that the respondents’ alleged remarks, offers and settlement strategies constituted a form of reprisal. The last alleged discriminatory incident noted in response to Question 7 of the Application is June 30, 2009, which was the date of the OLRB hearing into the applicant's OHSA complaints.

3The Application was served on the respondents and the applicant’s union as a named affected party.

4In their Response, filed on July 26, 2010, the respondents requested that the Tribunal dismiss the Application on the basis of section 45.1 of the Code because the OLRB has already appropriately dealt with the substance of the Application. The respondents submit that the OLRB found that there was no prima facie case and dismissed the applicant’s OHSA complaints on July 8, 2009. The respondents also assert that since the Application relates to events arising from and flowing from the OLRB mediation, there is a concern that the alleged comments may be shielded by mediation privilege and confidentiality.

5On July 28, 2010, the applicant’s union filed a Request to Intervene.

6In her Reply, filed on August 20, 2010, the applicant reiterates her allegations of discriminatory remarks during the course of the OLRB mediation.

7Neither the applicant nor the respondents have filed any submissions in response to the union’s proposed intervention and the timeline for doing so has elapsed.

PRELIMINARY ISSUE

8The Tribunal determines that it is appropriate to hear submissions as to whether or not some or all of this Application can proceed because the events upon which this Application is based may be protected by mediation privilege and confidentiality.

9The Tribunal directs that a hearing by teleconference will be scheduled to hear the parties’ submissions with respect to whether or not this Application is barred because of concerns with respect to mediation privilege and confidentiality. A Notice of Hearing with call-in information will follow. If either party wishes to rely on any written materials (including written submissions, documents or case law) or facts not already before the Tribunal, they must deliver such additional material to the other party and file it with the Registrar within 45 days of the date of this Interim Decision. Following the teleconference, the Tribunal will determine whether or not this Application may proceed and may make further directions, including with respect to the respondents’ request to dismiss.

REQUEST TO INTERVENE

10The applicant’s union seeks to intervene in accordance with Rules 11 of the Tribunal’s Rules of Procedure. The union submits that it has a significant interest in the outcome of the Application as the applicant seeks various remedies which may impact the collective agreement.

11In accordance with the Tribunal’s standard practice where an applicant is a member of a bargaining unit represented by the union, the union’s request to intervene is granted. The union is directed to write the Tribunal and the parties, within 14 days of the date of this Interim Decision, regarding whether or not it seeks to participate in the hearing of the preliminary issue regarding mediation privilege and confidentiality. Should the union not seek to participate at this stage, the nature and extent of the union’s participation in the proceeding will be determined by the adjudicator hearing the merits of the Application.

NOTICE OF PROCEEDING

12Pursuant to Rule 1.7(f) of the Tribunal’s Rules of Procedure, the Tribunal directs that notice of the preliminary hearing, the Application, Response, Applicant’s Reply, and this Interim Decision be given to the OLRB. Should the OLRB seek to participate in the preliminary hearing, it shall make its request in writing to the Tribunal and copied to the parties within 14 days of the date of this Interim Decision.

13I am not seized of this matter.