Crowley v. Liquor Control Board of Ontario, 2010 HRTO 2407

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Maureen Crowley Applicant

-and-

Liquor Control Board of Ontario (LCBO), Rick Redwood, Susan Quinn, Natalie Lachapelle, Anita Fulford, Marian Chipchase and Dan Dean Respondents

AND B E T W E E N:

Maureen Crowley Applicant

-and-

Ontario Public Service Employees Union Respondent

INTERIM DECISION

Adjudicator: Mark Hart Date: December 2, 2010 Citation: 2010 HRTO 2407 Indexed as: Crowley v. Liquor Control Board of Ontario

1These are two Applications filed June 30, 2009 under Part VI of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the "Code"). The underlying complaints were filed with the Ontario Human Rights Commission (the "Commission") on April 8, 2008.

2The purpose of this Interim Decision is to address the applicant's request for reactivation of the Applications following deferral, the respondents Liquor Control Board of Ontario ("LCBO") and Rick Redwood's request for dismissal of the Applications as an abuse of process, and the applicant's request for a further postponement of this matter pending an investigation by the office of the Ombudsman Ontario.

3I also will address case management issues relating to this proceeding.

BACKGROUND

4By Interim Decision dated November 26, 2009, 2009 HRTO 2030, this proceeding was deferred pending a grievance arbitration proceeding before the Grievance Settlement Board ("GSB"). The Decision states that if a party wishes to proceed with the Applications, they must contact the Tribunal no later than 60 days after the conclusion of the arbitration proceeding.

5A grievance had been filed by the applicant on March 19, 2007 alleging that the LCBO, the Ontario Public Service Employees Union ("OPSEU") and certain LCBO employees were in breach of their obligations under the Code and the collective agreement and that the applicant had experienced discrimination because of disability.

6The grievance arbitration proceeding commenced on February 26, 2008, with the applicant's brother allowed to participate to some extent on her behalf although no formal order was made granting him standing. As a result of that hearing, an order was made by the GSB requiring OPSEU to advise the LCBO which claims and remedies it was seeking to advance and to provide particulars of the claim. This order was not complied with.

7On June 16, 2009, the hearing continued by conference call with representatives of LCBO and OPSEU, at which time the GSB was advised that the applicant had filed a complaint under the Code in 2008 and that the LCBO had asked that the human rights proceedings be deferred until the grievance arbitration proceeding had been concluded. At this time, as a result of the amendments to the Code, the applicant's complaints to the Commission were no longer being actively processed and the applicant had until June 30, 2009 to file her applications with the Tribunal.

8As a result, the GSB agreed not to proceed, pending confirmation as to whether the applicant was pursuing her human rights complaints by filing applications with the Tribunal. The LCBO requested that a timetable be established so that it could prepare for the case before the GSB. OPSEU advised the GSB that the applicant would not cooperate with the union until the human rights claim had reached its conclusion and had expressed the view that the GSB was the inappropriate forum to address her claims. The applicant asked the union to seek an adjournment of the GSB hearing until the Human Rights Tribunal had made a decision on its jurisdiction over the matter or had reached its decision on the merits.

9The GSB adjourned the arbitration proceeding until July 8, 2009 to allow the parties to determine if the applicant was going to pursue her human rights claims before this Tribunal. On July 8, 2009, the GSB proceeding continued, again by conference call. The applicant did not participate in the GSB proceeding, and did not provide the union with the particulars previously ordered. As a result, an order was made by the GSB on July 8, 2009 setting a further schedule for particulars to be provided and scheduling November 18, 2009 as the hearing date. The applicant was advised that the grievance arbitration proceeding would proceed, with or without her cooperation or attendance, and she was warned that if she did not cooperate with the union, she ran the risk of having her grievance dismissed.

10The November 18, 2009 hearing did not proceed, but was adjourned sine die on consent.

11On April 13, 2010, the LCBO brought a motion to the GSB to dismiss the grievance. The union advised that the applicant still had not provided the information required pursuant to the orders made by the GSB. The union further advised that it had been informed by the applicant's representative that due to medical difficulties, the applicant was not able to proceed in both forums, although information about these medical difficulties was not provided to the union.

12The GSB dismissed the applicant's grievance by decision dated May 21, 2010, on the basis that the union's case rested entirely upon the applicant and the evidence she wished to advance, however the applicant was refusing to cooperate with the union by providing the required information and participating in the arbitration process. The GSB held that the LCBO and the union were entitled to have grievances dealt with in a timely manner, and the proceedings could not be tied up indefinitely until the applicant decided that she was prepared to cooperate and comply with the GSB's orders.

REQUEST FOR REACTIVATION

13By letter dated July 25, 2010, the applicant's representative advised that the applicant wished to continue with the human rights proceeding. However, the applicant indicated that a complaint with Ombudsman Ontario was being filed regarding the Tribunal's decision to defer pending result of the GSB proceeding, and requested that the proceedings be delayed until such time as the Ombudsman's office could address the issue. This letter is dated 5 days after the expiry of the 60 day period following the GSB decision.

14By letter dated October 13, 2010, the Tribunal wrote to the parties noting the requirements for seeking to reactivate the Applications as set out in the Interim Decision dated November 26, 2009 and the Tribunal's Rules. Within 14 days, the applicant was required to send a letter clearly setting out her intention to proceed with her Applications, explaining her delay in filing her request, and providing a copy of the GSB decision in accordance with the Rules.

15The applicant responded by letter dated October 27, 2010, in which she clearly indicated her intention to proceed with the Applications. While she continued to request that this proceeding be postponed pending the resolution of her complaint to the Ombudsman, she indicated that she understood that it was up to the Tribunal to decide whether to grant the postponement and that she was prepared to proceed if the postponement was denied. The applicant also stated that her 5 day delay in filing her request for reactivation of her Applications was due to an error in calculating the time.

16By letter from the Tribunal dated November 3, 2010, the respondents were afforded an opportunity to respond to the applicant's request and the applicant was afforded the right to file any submissions in reply.

17The respondents oppose the request for reactivation of the Applications on the basis that the applicant failed to comply with the mandatory 60 day time period prescribed both by the Tribunal's Interim Decision and by the Rules. While conceding that no significant prejudice was incurred as a consequence of the 5 day delay, the respondents submit that before addressing the issue of prejudice, it is incumbent upon the applicant to provide a good faith explanation to justify the delay. The respondents state that the mere assertion of a miscalculation error is not a sufficient explanation.

18While I certainly agree with the respondents that the timelines set out in the Tribunal's Rules are to be respected, I also have a broad discretion under Rule 3.6 to relieve against a failure to comply, "where to do so would be fair and just and would not substantially prejudice a party or unduly delay the proceeding". In my view, this broad discretion is not analogous to the statutory requirements under s. 34(2) of the Code where an application has been filed beyond the one year time limit and an applicant is required to establish a good faith explanation for the delay before any issue of prejudice is considered. Rather, in my view, the reason for the failure to comply with the Rules is one factor that I can consider in the exercise of my broad discretion under Rule 3.6.

19In this case, in light of the very short time period of the delay and the absence of any demonstrated prejudice to the respondents, I exercise my discretion to relieve against the applicant's failure to request reactivation within the 60 day time period and allow her to reactivate her Applications.

ABUSE OF PROCESS

20The LCBO and Mr. Redwood request that the Application against them be dismissed as an abuse of process, in view of the applicant's failure to cooperate in the GSB proceeding. They assert that this Tribunal's Interim Decision indicated that the GSB was an appropriate forum to hear the applicant's claims, and that instead of challenging the Tribunal's decision, the applicant simply frustrated the GSB proceeding by her refusal to cooperate. These respondents take the position that this Tribunal should not endorse the applicant's conduct by allowing her to proceed with her Application.

21The Tribunal's Interim Decision did not, in fact, determine that the GSB was an appropriate forum to deal with the applicant's human rights issues (although there is no question that it could be) or require the applicant to cooperate or participate in that proceeding. Rather, the only issue determined by this Tribunal was that deferral was the most fair, just and expeditious way of proceeding given the stage of the GSB arbitration process and the overlapping issues.

22An applicant is not required to file a grievance or participate in a grievance arbitration process as a pre-condition to filing or proceeding with an application before this Tribunal. Rather, under the current Code, an applicant has the option of deciding whether to utilize the grievance arbitration procedure, if available, or to file an application with this Tribunal or do both. Where an applicant decides both to file a grievance and an application to this Tribunal, this will give rise to issues about whether the human rights application should be deferred pending the result of the grievance arbitration procedure and, if an arbitration decision is issued on the merits, whether the arbitration proceeding has appropriately dealt with the substance of the application.

23In this case, there was no arbitration decision on the merits of the issues raised by the applicant. While she did file a grievance and pursued it under the steps provided by the collective agreement, it is clear that she did not wish to participate in the arbitration process before the GSB. In my view, this situation is not materially different from a situation where an applicant chooses not to file a grievance at all or decides to withdraw a grievance in favour of proceeding with an application before this Tribunal. Doing so is not, in my view, an abuse of process, but is merely the exercise by an applicant of her right to choose the forum where she wishes her human rights claim to be heard and determined.

24I appreciate that it must have been frustrating for the respondents to be required to participate in a grievance arbitration process with which the applicant was not cooperating. Perhaps it would have been preferable if she had simply withdrawn her grievance without prejudice to her ability to proceed with her Applications before this Tribunal. However, in light of the ability of an applicant under the current human rights system to choose the appropriate forum for the determination of human rights issues, I cannot find that the circumstances of this case rise to the level of an abuse of process.

REQUEST FOR POSTPONEMENT

25The applicant has requested that this proceeding be postponed pending determination of a complaint filed by her with the Ombudsman. A copy of any such complaint has not been provided to the Tribunal. The only information provided about this complaint is that it relates to this Tribunal's Interim Decision dated November 26, 2009 and an allegation that the applicant was denied natural justice or procedural fairness as a result of the decision to defer.

26I do not understand how any investigation by the Ombudsman would have an impact of the continuation of this proceeding. This Tribunal, upon consideration of submissions made by all parties, decided to defer the Applications pending the result of the GSB process. The GSB process has now concluded with dismissal of the grievance and no consideration of the merits of the applicant's human rights claims. As a result, I have allowed the applicant to reactivate her Applications and have denied the request to dismiss the Applications as an abuse of process. The effect of my decision is that the Applications will now proceed forward in the normal course, with all of the rights to administrative fairness afforded under this Tribunal's Rules and Procedures.

27Accordingly, the applicant's request for postponement is denied and this matter will proceed in the manner indicated below.

CASE MANAGEMENT

28The respondents LCBO and Redwood have raised a number of preliminary issues in the Response filed, including: that the Application against them should be dismissed as outside this Tribunal's jurisdiction as there is no prima facie proof that the applicant suffers from a "disability" requiring accommodation; that Mr. Redwood should be removed as a personal respondent; and that the allegations against the union and the applicant's co-workers should be dismissed as against the LCBO and Redwood.

29Having reviewed and considered the material filed with the Tribunal to date, in my view it is appropriate to hold a one day hearing to receive evidence and oral submissions regarding these preliminary issues, and particularly whether the applicant can establish that she had a disability for which she sought accommodation at the relevant time. At this one day hearing, the Tribunal would hear all of the applicant's evidence regarding whether she had a disability within the meaning of the Code at the material times, what information about any such disability and her need for accommodation was communicated to the LCBO, and why she alleges that the transfers granted to her failed to appropriately accommodate any disability she may have. The Tribunal also would hear any evidence from the LCBO and Redwood in response.

30In order to facilitate preparation for this hearing, the Tribunal hereby establishes the following schedule:

a) By no later than December 23, 2010, the respondents LCBO and Redwood shall serve and file a Request for Order (Form TR-4) regarding the preliminary issues they have raised in their Response and any other preliminary issues they wish to raise, together with written submissions and any applicable caselaw;

b) If the other respondents intend to raise any preliminary issues, they also shall serve and file a Request for Order (Form TR-4), together with written submissions and any applicable caselaw, by no later than December 23, 2010;

c) By January 14, 2011, the applicant shall serve and file a Response to Request for Order (Form TR-5), together with written submissions and any applicable caselaw, in response to all preliminary issues raised. This material shall include a statement of all of the applicant's evidence regarding whether she had a disability within the meaning of the Code at the material times, what information about any such disability and her need for accommodation was communicated to the LCBO, and why she alleges that the transfers granted to her failed to appropriately accommodate any disability she may have. This material shall include all documents upon which the applicant intends to rely in relation to these issues.

d) By January 21, 2011, the respondents shall serve and file any submissions in reply.

e) Within 20 days of the date set for the preliminary hearing in this matter, the parties shall serve and file a list of all witnesses they intend to call to give evidence at the preliminary hearing, a complete statement of all of the evidence to be given by each witness, and a copy of any documents intended to be relied upon at the preliminary hearing.

31I am aware from the materials on file that the applicant has expressed concern about the disclosure of medical information and documentation to the union and the respondents who are co-workers. While I appreciate this concern, all parties to this proceeding are entitled to be provided with documentation relevant to the issues raised as a matter of administrative fairness. Accordingly, any medical documentation and information that supports the applicant's disability and her request for accommodation at the material times must be disclosed to all respondents. I do note, however, that pursuant to Rule 5.4, "parties or their representatives may not use documents obtained under these Rules for any purpose unconnected to the proceeding before the Tribunal".

Dated at Toronto, this 2nd day of December, 2010.

"Signed by"

__________________________________

Mark Hart Vice-chair