Vasey v. St. Michael’s Hospital, 2010 HRTO 2435

Human Rights Tribunal of Ontario

Between:

Barbara Vasey Applicant

-and-

St. Michael’s Hospital, Nelson Fryer, and Jo-Anne Copeland Respondents

Interim Decision

Adjudicator: Judith Hinchman Date: December 7, 2010 Citation: 2010 HRTO 2435 Indexed as: Vasey v. St. Michael’s Hospital

Written Submissions By

Barbara Vasey, Applicant ) Michael N. Freeman, Counsel St. Michael’s Hospital, Nelson Fryer, ) Karen M. Sargeant, Counsel and Jo-Anne Copeland, Respondents )

Introduction

1This is an Application filed June 23, 2009, under section 53(5) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The underlying human rights Complaint (the “Complaint”) was filed with the Ontario Human Rights Commission on March 29, 2005, and abandoned upon filing this Application with the Tribunal. A hearing is scheduled on the merits of this Application on February 1 and 2, 2011.

2This Decision addresses the respondents’ Request (the “Request”) that certain evidence of Mr. Carl Phillips given before the Ontario Labour Relations Board, file #4561-04-U, be accepted as his evidence in the hearing of this Application, “unchallenged.”

Nature of the Dispute

3The corporate respondent St. Michael’s Hospital employed the applicant as a nurse for approximately 16 years. Her employment ended in September of 2004. The parties dispute whether the applicant resigned or was constructively dismissed.

4The Ontario Nurses Association (“ONA”) was the applicant’s union and at the relevant time, Mr. Phillips was the applicant’s union representative. It is not disputed that he attended meetings between the corporate respondent’s management and the applicant.

5On March 30, 2005, The applicant filed an application pursuant to the Labour Relations Act, 1995, S.O. 1995, c.1 (“Labour Board application”) alleging that the ONA violated its duty to her under section 74 by failing to assist her properly in dealing with a suspension of her regular duties on September 1, 2004 and with her resignation that same day, and also for failing to process a grievance.

6ONA filed a motion to dismiss the Labour Board application for failure to state a prima facie case. Mr. Phillips gave evidence at the Labour Board hearing.

7The respondents have listed Mr. Phillips as a witness in the upcoming hearing of this Application and have filed his witness statement. The respondents submit that the Ontario Labour Relations Board accepted portions of Mr. Phillips’ proposed evidence as facts and thus those portions should be accepted in this Application as uncontested facts. The respondents submitted a chart showing his proposed evidence and the related “findings from OLRB Decision.”

Analysis

8The respondents do not base their Request upon any particular theory or section of the Code.

9I have reviewed Mr. Phillips’ proposed evidence regarding two meetings that he attended with the applicant and hospital management as well as his communications with the applicant and others at the hospital.

10The applicant’s allegations in her Application and Mr. Phillips’ proposed evidence vary in the description of the tone of the meetings and whether or not certain comments were made by Mr. Phillips that could lead to an inference that the employer intended to terminate the applicant’s employment prior to receiving her resignation letter.

11My reading of the Board’s decision does not persuade me that it made any findings regarding those disputed facts. First of all, for purposes of the motion before it, it assumed facts and did not make any findings. Furthermore, specifically regarding communications between ONA representatives (of which Mr. Phillips was one) and the applicant, the Board stated: “For the purposes of its motion, ONA disputes Vasey’s recollection of conversations between Vasey and ONA representatives at this time but it is unimportant to ONA that those conflicts are resolved.”

12The Board did not make findings regarding Mr. Phillips’ proposed evidence in this Application and thus it is not appropriate to accept Mr. Phillips’ proposed evidence as unchallenged in these circumstances.

13The respondents’ Request is denied.