Holowka v. Ontario Nurses Association, 2010 HRTO 2171

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ellen Holowka Applicant

-and-

Ontario Nurses Association Respondent

DECISION

Adjudicator: Sherry Liang Date: October 29, 2010 Citation: 2010 HRTO 2171 Indexed as: Holowka v. Ontario Nurses Association

APPEARANCES:

Ellen Holowka, Applicant ) Kate Stephenson, Counsel Ontario Nurses’ Association, Respondent ) Claudia Vicencio, Counsel

1This is an Application filed on March 3, 2009 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”).

2The applicant alleges that the respondent, the Ontario Nurses’ Association (“ONA” or the “union”), discriminated against her in employment on the ground of disability. Until March 2008, ONA represented the applicant in her employment relations with the St. Joseph’s Health Care Group, her employer. In March 2008, the applicant entered into a settlement with her employer in which she agreed to the severance of her employment, in exchange for a monetary payment. ONA was also a signatory to this agreement.

3In her Application, the applicant states that she experienced discrimination in being denied necessary accommodation or modified work in the workplace. She states that the employer did not accommodate her and the union improperly conceded that accommodation by the employer was impossible. As a result, her employment was terminated. The applicant states that “unfortunately for me, the grievance settlement included a release against the employer. This is why I have not named the employer in this application.” As remedy, the applicant requests, among other things, her ongoing lost wages until she finds other work.

4In its Response, ONA requests that the Application be dismissed without a hearing on the basis of the settlement. ONA also requests that the Application be dismissed because it does not raise a claim of discrimination by ONA under the Code. A claim that she should have received better representation from her union is outside the jurisdiction of the Tribunal.

5The Tribunal directed a conference call to hear submissions from the parties on ONA’s requests to dismiss, and directed the parties to submit any additional submissions, facts or case law that they intended to rely on prior to the conference call. Only ONA filed additional written submissions, in which it elaborated on its requests.

BACKGROUND – LEGAL FRAMEWORK

Section 45. 1 and Abuse of Process

6In its request to dismiss the Application, ONA relies on section 45.1 of the Code as well as on the doctrine of abuse of process.

7Section 45.1 of the Code states that the Tribunal may dismiss all or part of an Application where its substance has been appropriately dealt with in another proceeding. In Dunn v. Sault Ste. Marie (City), 2008 HRTO 149, the Tribunal found that section 45.1 can apply to prevent the re-litigation of issues settled in a proceeding under another statutory scheme. In Van Barneveld v. I.O.O.F. Seniors Homes, 2009 HRTO 448, the Tribunal confirmed that a union grievance, which can proceed to adjudication before an arbitrator under the Labour Relations Act, 1995, S.O. 1995, c. 1, Sched. A, as amended (the “LRA”), may be a “proceeding” within the meaning of s. 45.1.

8The Tribunal may also dismiss an application as an abuse of process where an applicant has entered into a settlement resolving his or her outstanding employment issues: Stansens v. Liquor Control Board of Ontario, 2009 HRTO 1560; Sinnett v. Orlick Industries, 2009 HRTO 916; Luo v. Dell Canada, 2010 HRTO 879; and Messiah v. Snap-on Tools of Canada, 2010 HRTO 1151.

The Discrimination Claim

9The applicant claims that she has been discriminated against in her employment by ONA. Section 5 of the Code provides that every person has a right to equal treatment with respect to employment without discrimination because of, among other things, disability. Although she does not refer to section 11, this section is relevant insofar as the applicant relies on a duty to accommodate her disability. The applicant has not alleged discrimination under section 6, which protects the right to equal treatment with respect to membership in a trade union.

10ONA submits that the Application fails to establish a prima facie case of discrimination on the basis of a disability. The Tribunal has described a prima facie case of discrimination as “one which covers the allegations made and which, if they are believed, is complete and sufficient to justify a finding in the applicant's favour in the absence of an answer from the respondent”: Ontario Human Rights Commission v. Simpsons-Sears, 1985 CanLII 18 (S.C.C.), [1985] 2 S.C.R. 536,

11The Tribunal has the power under its Rules to determine the order in which issues will be dealt with: Rule 1.7(g). Accordingly, it may consider the question of whether an application establishes a prima facie case of discrimination based on the application and written materials, or after it has heard evidence. Where it considers the issue before any evidence has been led the threshold test, as described above, it will be the same, but the question will be whether the applicant raises allegations that, if accepted to be true, would be enough to establish a violation of the Code. See Arias v. Centre for Spanish Speaking Peoples, 2009 HRTO 1025.

THE FACTS AND ALLEGATIONS

12The following is based on the allegations in the Application, as well as uncontested background facts derived from the Response and Reply and submissions of the parties.

13The applicant was a nurse employed by the St. Joseph’s Health Care Group at the Hogarth Riverview Manor. She was a member of the bargaining unit represented for employment purposes by ONA, and was in fact at the relevant times the bargaining unit president. She had been with the employer about eight years at the time of these events.

14On June 14, 2007, her employer gave her a written warning by way of a letter which documented certain concerns about her nursing practice. The concerns were discussed at a meeting the same day at which the applicant was represented by Michelle McColl, a Labour Relations Officer with ONA. Following the meeting, Ms. McColl asked the applicant if she wished to grieve the warning letter but the applicant declined, indicating that she preferred to work through the issues on her own with her manager.

15On June 25, 2007, the employer convened a further meeting with the applicant and her ONA representative in which it raised concerns with respect to the applicant’s attendance. On July 24, there was a further meeting in which the employer raised several additional concerns about the applicant’s nursing practice, at the conclusion of which the applicant agreed to a practice review to be done by a neutral person. The intent of the employer was to determine whether the applicant was “safe to practice” through the appointment of a reviewer to work with the applicant and assess her practice.

16The employer wished to hold a meeting on August 1 to further this practice review. On July 31, the applicant took sick leave, initially for a short period. The meeting was re-scheduled to August 13. The applicant states that when she saw her doctor again on August 9, he “took her out of work” for 4 weeks. On August 16, she saw her cardiologist, who took her off work until she saw him on September 20. On September 20, the applicant’s doctor issued a medical note stating “Ms. Holowka is to be off work 6 months for medical reasons.”

17In October, the applicant advised one of her ONA representatives that she had a doctor’s note supporting reduced hours when she returned to work in March 2008. This was also discussed with her ONA representative in November, as well as the fact that the employer would still proceed with the practice review once she returned.

18In January and February, the applicant had further discussions with her ONA representative in anticipation of the end of her sick leave. At this point, the employer had hired a new supervisor at the applicant’s workplace, and intended to have the applicant’s practice review conducted by this new supervisor. The applicant was not happy with this prospect. In her Reply, she states that she felt strongly about being under constant supervision by a representative of the employer, rather than by a neutral as she had expected. The applicant stated that she felt ONA was not being supportive of her with respect to this concern.

19There is a disagreement in the materials about which party initially suggested the possibility of a severance agreement. ONA states that it was the applicant who initially indicated, in December 2007, that she may be interested in an offer of severance rather than go through the practice review on her return to work. The applicant states that she believed that working for the new supervisor would cause her a great deal of stress, which would be problematic because of her health issue. She states that she told ONA that what was being proposed was effectively a demotion and she did not believe it was fair when what she needed was accommodation of her disability. She states that she raised with Ms. McColl her need for reduced hours, and that she understood that ONA was trying to make arrangements for a reduced workload under the collective agreement.

20The applicant alleges that ONA did not advise her what the employer’s response was to this request, but told her that her only choices were to work under the new supervisor or take a severance package. The applicant states that she was told that the severance would be obtained by “bringing a grievance for frustration of contract.”

21ONA did not file a grievance. Rather, the parties entered into negotiations about a severance of employment. The applicant states that she was advised by Ms. McColl at the end of February that the employer was offering a $25,000 severance payment. The applicant wished to know if this was before taxes or after taxes. Ms. McColl made inquiries with the employer and confirmed with the applicant that the offer was after tax. The applicant states that Ms. McColl also reiterated that if she wished to return to work it would have to be under the supervision of the new supervisor, and she would also need to provide a doctor’s note telling what work she could do so that she would “not be injured again.”

22The applicant states that during this time, she felt a lack of support from the union. She states that without this support, she felt that she was trapped and had no choice but to take one of the options being presented to her. She states that if she went back to the workplace under the condition of being under the new supervisor, she knew that she would have problems. She states “I could not face the prospect of ongoing struggles with not only the employer, but the union as well.”

23Ms. McColl sent her a copy of a settlement document on February 20, suggesting that they meet on March 3 to sign the agreement. The applicant states that “I felt that I had no choice but to settle for what was being offered.” She states

I was upset that I didn’t receive better representation from the union. I was really stressed out, and felt that I needed to get out of this situation. I didn’t feel good about the situation because I wanted and needed to continue working, and would have worked at the hospital until my retirement.

24The agreement included the following terms:

a. ONA and the applicant agreed that the employer had met its duty of accommodation to the point of undue hardship and is unable to continue to employ the applicant as a full-time employee.

b. The applicant was to receive, within ten days of the singing of the agreement, $37,715.00, less required deductions, as severance.

c. In consideration of the agreement, ONA and the applicant agreed to release the employer from any other “claims or actions, including claims under the collective agreement, Human Rights Code or the Employment Standards Act.

25The applicant was paid under the agreement. Approximately four months later, she complained to the President of the ONA about the agreement. Among other things, she stated that she felt that ONA did not assist her in seeking a return to work with decreased hours. She also stated that she felt she had not been “given much of a choice” in that she had been told that she had to work with the new supervisor. She stated that her severance would run out as well as Employment Insurance, and she had been having difficulty finding other employment without a reference from the employer.

26The President of ONA sent her a detailed response after investigating the circumstances. ONA’s understanding, as conveyed in its letter, was that the employer was willing to have the applicant return to work as long as the nursing practice concerns were addressed. The applicant did not agree to this. ONA stated that while the possibility of returning to work on a part-time basis was discussed, this was not pursued once the employer put forward the offer of a monetary settlement, which was negotiated in consultation with the applicant.

27ONA did agree to assist the applicant in obtaining a letter of employment (as distinct from a reference letter), and forwarded one to her in August or September. In her Application, the applicant states that the fact that she does not have a reference letter from her former employer has resulted in an inability to find another position.

SUBMISSIONS OF THE PARTIES

28In her submissions, counsel for the applicant stated that the basis for the claim against ONA is that is that in agreeing to a severance of her employment relationship instead of pursuing a claim to accommodation, both ONA and the employer discriminated against the applicant. From the applicant’s perspective, the only option presented to her by ONA was the severance of her employment relationship. This reflects an agreement between the employer and ONA which resulted in the failure to take her disability into account. Counsel relies on the decision in Central Okanagan School District No. 23 v. Renaud, 1992 CanLII 81 (SCC), [1992] 2 S.C.R. 970 in support of her position that the union shares joint liability with the employer in such a situation.

29Counsel submitted that in disability cases, discrimination can occur in two ways: substantively, in failing to provide appropriate accommodation, and procedurally, in failing to make proper inquiries with respect to the accommodation needs. In this case, it is submitted, ONA had a duty to pursue accommodation of the applicant’s disability-related needs and instead of doing that, it pursued a severance arrangement instead. Counsel for the applicant stated that a union is not necessarily liable in all cases where an applicant claims a failure of accommodation in a unionized workplace. However, in this case, the union’s liability arises out of the allegation that it negotiated a severance agreement instead of advocating for the applicant’s accommodation.

30With respect to the agreement, counsel for the applicant submits that although it releases the employer from any claims, it does not release the union. Both the union and the employer have obligations with respect to the accommodation of employees with disabilities; releasing one party and acknowledging that it has met its duty does not affect the other party.

31In the submissions of ONA, the agreement represents a full and final settlement of the applicant’s employment issues and precludes her from litigating issues which it resolved. The pressure the applicant states she felt does not amount to undue duress or coercion relieving her from the plain and ordinary intent of the agreement. By its specific terms, the applicant has agreed that her Code rights have been met. ONA also submits that the facts alleged by the applicant do not provide a basis for a claim that ONA breached the applicant’s right to non-discrimination. At their highest, they may raise issues of the duty of fair representation, but not human rights issues.

32Further, this is not an unsophisticated applicant. She was the bargaining unit president at the time, and very familiar with issues of accommodation and the rights under the collective agreement. The applicant could have insisted at any time that a grievance be filed regarding her request for accommodation, but chose to enter into settlement discussions and ultimately to resolve her employment issues. There were two distinct issues under discussion, one of them being the applicant’s request for accommodation and the other the work performance issues. In light of the applicant’s reluctance to return to work under supervision, she agreed to the severance arrangements. The union represented her in these negotiations but the choice was hers to make.

DECISION

33In this case, the applicant agreed to an arrangement resulting in the severance of her employment, in the course of discussions about her return to work and ongoing performance concerns.. The agreement was not reached as a result of a grievance process, as no grievance was filed by ONA on her behalf, although it appears that the parties contemplated that one may be filed if necessary. It is not clear to me that the context in which the agreement was reached can be considered a “proceeding” within the meaning of section 45.1 of the Code, and I therefore prefer to analyse this case under the Tribunal’s abuse of process principles.

34The Tribunal has the jurisdiction to stay or dismiss an application if to proceed would amount to an abuse of process. This discretionary power is confirmed by section 23(1) of the Statutory Powers Procedures Act, R.S.O. 1990, c. S. 22, which provides that “a tribunal may make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes.”

35As indicated above, the Tribunal has dismissed applications as an abuse of process where an applicant has entered into a settlement resolving his or her outstanding employment issues. Such settlements need not arise in the context of actual litigation. They may, as in the case of Luo v. Dell Canada, above, be entered into as a means of bringing finality to an employment relationship, where an employee agrees to payment of compensation in exchange for giving up any right to pursue legal action about a termination of employment.

36In Messiah v. Snap-on Tools of Canada, above, the Tribunal applied the abuse of process principle to dismiss an application, even where a settlement did not contain specific release language, where it was apparent from the agreement that the parties intended to bar future litigation with respect to all outstanding employment issues, including human rights issues. In that Decision, the Tribunal stated that “the question is whether it would be unfair to permit the proceeding to continue having regard to the terms of the memorandum of settlement and all of the surrounding circumstances.”

37In this case, the impetus for the Application is the applicant’s belief that she agreed to an unfavourable settlement of her employment issues that failed to address her need for accommodation. She contends that her need for accommodation was not properly dealt with by both ONA and her employer, acting together in negotiating the agreement. She states directly that the reason she has not named the employer in the Application is that she signed a settlement that released the employer.

38The Application states that the applicant experienced discrimination in “scheduling” and “in being denied necessary accommodation or modified work in the workplace”. The submissions on the conference call elaborated on the applicant’s allegations in this regard. The applicant submitted that a union is jointly liable with an employer if both enter into an agreement that results in discrimination. In this case, the union did not pursue the applicant’s need for accommodation in its discussions with the employer. Rather, it accepted the employer’s position that the applicant was obliged to return to work under the supervision of a particular supervisor. The result was an agreement that did not take the applicant’s disability into account. While the settlement and release preclude the applicant from pursuing a claim under the Code against the employer, the applicant submitted that it does not do so with respect to ONA.

39While I agree with the applicant that a union may be jointly liable with an employer for discrimination in the workplace, I do not agree that the circumstances of this case give rise to such a claim. In Renaud, above, the Supreme Court of Canada discussed the duty to accommodate in employment and the responsibilities of employers, employees and unions. The Court observed that

the duty to accommodate developed as a means of limiting the liability of an employer who was found to have discriminated by the bona fide adoption of a work rule without any intention to discriminate. It enabled the employer to justify adverse effect discrimination and thus avoid absolute liability for consequences that were not intended.

Thus, a duty to accommodate arises, in the case of an employer, where its workplace rules have an adverse effect on a person identified by a prohibited ground of discrimination. In the case of a union, the Court stated that

…the duty to accommodate only arises if a union is party to discrimination. It may become a party in two ways.

First, it may cause or contribute to the discrimination in the first instance by participating in the formulation of the work rule that has the discriminatory effect on the complainant. This will generally be the case if the rule is a provision in the collective agreement. It has to be assumed that all provisions are formulated jointly by the parties and that they bear responsibility equally for their effect on employees. (…. )

Second, (…) If reasonable accommodation is only possible with the union's co-operation and the union blocks the employer's efforts to remove or alleviate the discriminatory effect, it becomes a party to the discrimination.

40I do not accept the applicant’s submission that the scenarios described above by the Supreme Court fit the circumstances of this case. ONA could not have caused or contributed to discrimination against the applicant by participating in the formation of a work rule which had a discriminatory effect on the applicant. This applicant’s claim to accommodation was based on her understanding that she was expected to return to work full-time, and undergo a practice review under a particular supervisor. She believed that these conditions would have an adverse effect on her, given her disability. These were not conditions the union sought to impose; these were the employer’s requirements. If they were discriminatory, the employer was the party responsible for the discrimination. Further, this is not a case where the employer and the applicant required the union’s co-operation to remove obstacles to a reasonable accommodation. Therefore, on the facts of this case, it cannot be said that the union was “party to the discrimination” in the manner described in Renaud, above.

41I therefore find that the facts alleged do not provide a complete and sufficient basis upon which the Tribunal could find that ONA caused or contributed to discrimination against the applicant under section 5, in conjunction with section 11, of the Code.

42In any event, even if I were to accept the applicant’s contention that the union shares joint liability with the employer in failing to ensure that her disability-related needs were accommodated, in agreeing to the settlement, the applicant specifically chose to give up that claim, in exchange for a substantial severance payment.

43From the materials and submissions, it is clear that at the time the parties entered into the agreement, a prominent issue for all was the employer’s intention to conduct a practice review. Once the applicant returned to the workplace, the employer intended to continue the process it had started before her medical leave. The applicant states that regardless of those issues, she also had a need for accommodation through reduced hours on her return, of which she made the union aware. ONA states that it was aware of her request for accommodation, advised her about the medical documentation she would need to support it, and was prepared to assist her in arriving at an appropriate accommodation. In the submissions of counsel for the applicant, the identity of the person chosen to conduct the practice review was also an accommodation issue, although it does not appear from the materials that the applicant asked ONA to pursue this as an accommodation issue with the employer.

44Even accepting that the applicant had several bases on which to seek accommodation on her return to work and that she made those known to ONA, she chose not to pursue her claim to accommodation. She chose instead to sever her employment in exchange for monetary compensation. Although the applicant states that she felt she “had no choice”, the circumstances fall short of the kind of duress that would justify voiding the agreement. Indeed, the applicant has not attempted to void the agreement as against her employer, but seeks only to pursue her claim against ONA.

45In the submissions, the applicant’s counsel places emphasis on the fact that ONA is not specifically named in the release. But I find that in all the circumstances described above, the absence of a release of claims against ONA is not determinative. The terms of the settlement are clear. Fundamental to the settlement is the applicant’s agreement to the severance of her employment. Whatever may have been her legal rights at that point, she decided to leave the workplace instead of pursuing a return to work with accommodation. Further, in agreeing to the severance of her employment, she explicitly gave up any claim that she had not been properly accommodated in her employment. Having agreed to settle her claim that she had not been properly accommodated by her employer, it would be an abuse of process to permit the applicant to proceed with a claim that ONA breached its duty to accommodate the applicant by not ensuring that the employer met the applicant’s disability-related needs.

46My conclusion is consistent with the Decision in Savard v. Toronto (City), 2010 HRTO 1337, in which the Tribunal stated in similar circumstances:

It is not at all clear what section of the Code the applications allege that Local 416 infringed. The applicant’s legal representative explained that the crux of the complaint against Local 416 was that “the City discriminated and the union did not take sufficient steps to redress the wrong”. I am not sure that such an allegation makes out a prima facie case that Local 416 or its officers breached the Code, but that issue need not be decided. If the complaint is that Local 416 did not take the necessary steps to ensure that the City accommodated the applicant’s disability, then his written acknowledgment that he “is being accommodated in” the CSU position he has held since the date of his injury is sufficient to resolve the matter.

47I will deal briefly with a point that arose during submissions by counsel. Counsel for ONA described the settlement as representing an agreement between the parties that the applicant’s contract of employment had been “frustrated”. She submitted that there was no reason to think, and nothing in the materials establishes, that the applicant could not have been accommodated on her return to work. However, the practice issues dominated the discussions. Regardless of her needs for accommodation, the applicant was still facing those practice issues on her return to work. ONA stated that the “frustration of contract” doctrine was a pretext agreed to in order to “protect the applicant from further disciplinary measures in relation to the practice concerns.”

48Counsel for the applicant submitted that the use of the term “pretext” proves that none of the parties believed that the substantive duty to accommodate had been met. Given this acknowledgment, in the applicant’s submission, ONA cannot argue that the accommodation issue has been appropriately dealt with under section 45.1 of the Code, because it hasn’t been dealt with at all.

49In the circumstances, I do not attribute any legal significance to the use of the term “pretext” by counsel. In the context, it simply means that while the employer had concerns about work performance, it chose not to continue the practice review it had intended to implement but, rather, to agree to a non-disciplinary severance of employment. On her part, the applicant chose not to pursue her claims to accommodation upon her return to work and to accept an agreement severing her employment. Both drew some benefit from agreeing to treat the severance as a “frustration of contract.” Both in effect chose not to pursue their legal rights further and arrived at a compromise solution instead.

50I do not need to address whether, under section 45.1 of the Code, the settlement “appropriately dealt with” the substance of the issues in the Application, as the circumstances of this case bring it under the Tribunal’s abuse of process principles. On an application of those principles, this applicant agreed to a settlement which resolved the human rights claims raised in her Application. In the absence of extraordinary circumstances which justify setting aside the settlement, she cannot further those claims through this Application.

51I wish to address one final point. As I have indicated, the theory put forward by the applicant is that ONA discriminated against her in employment by joining together with the employer to deny her right to be accommodated in the workplace. I have found that she cannot pursue such a claim in the face of her agreement. She has not made a claim under section 6 of the Code, relating to equal treatment in membership in a trade union. In the interests of clarity and completeness, I also find that her allegations do not establish a complete and sufficient basis for a claim that ONA discriminated against her on the basis of a disability in the manner in which it represented her. Even leaving aside the settlement, there is nothing in the facts alleged that could support a conclusion that ONA provided her with unequal services as a bargaining agent on the basis of her disability.

52In conclusion, the Application is dismissed.

Dated at Toronto this 29th day of October, 2010.

”signed by”______________

Sherry Liang

Vice-chair