HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Michael Folino
Applicant
-and-
The Lakehead Motors Limited
Respondents
INTERIM DECISION
Adjudicator: Michelle Flaherty
Indexed as: Folino v. Lakehead Motors
1This Application, filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), involves allegations of discrimination on the basis of sex, sexual solicitation, and sexual orientation in the context of employment.
2In the Response, the respondent seeks an early dismissal of the Application and argues that a grievance proceeding has appropriately dealt with the substance of the Application.
3From the material initially filed with the Tribunal, I was unable to determine the scope of allegations addressed in the grievance proceeding. In particular, it was not clear which allegations post-date the settlement or whether specific allegations were not addressed in the grievance. In response to an earlier Interim Decision, 2010 HRTO 156, the parties filed submissions regarding these issues.
4The purpose of this Interim Decision is to determine whether the Application should be dismissed (in whole or in part) pursuant to section 45.1 of the Code because the grievance proceeding has appropriately dealt with the substance of the Application.
Submissions regarding the scope of the grievance
5The respondent has filed a copy of the grievance, dated November 20, 2008. The grievance states:
The Company is in violation of the Collective Agreement; Articles 4.01(a), 9.01 and the Human Rights Act. The Company is harassing and intimidating a Bargaining unit Employee who complaints of the Companies actions, thereby causing aid employee mental stress and distress, resulting in mental fatigue and suffering.
6The respondent has filed excerpts of the collective agreement; however, the excerpts provided do not include the articles referenced in the grievance.
7When he filed the grievance, the applicant appears to have provided the respondent with a recital of the facts and allegations that formed the basis of his grievance. The recital summarizes incidents, which are alleged to have occurred on or about the following dates: August 2003; Fall/Winter 2004; Spring 2005; May 7, 2005; November 16, 2005; November 17, 2005; November 18, 2005; June 8, 2006; September 24, 2007; March 3, 2008; and March 10 to 14, 2008.
8The respondent has provided a copy of the settlement agreement signed by the applicant and dated December 3, 2008. It states simply:
The grievance between Michael Folino and Lakehead Motors has been successfully resolved by both parties.
9Along with his submissions, the applicant filed a letter from his Union, dated February 2, 2010, which states:
This letter is to advise and confirm you were advised to remove items from a grievance filed against Lakehead Motors Limited on November 20, 2008.
Certain aspects of the grievance could not be dealt with in the grievance form since the Collective Agreement with Lakehead Motors Limited has no terminology with regard to sexual harassment and/or complaints of this type.
As the Collective Agreement is lacking in terminology, you were advised to remove items complained of dated:
i. July, 2003
ii. September, 2003
iii. September 29, 2008
iv. October 3, 2008
v. October 6, 2008
vi. October 7, 2008
vii. October 17, 2008
viii. November 20, 2008
ix. December 18, 2008
x. January 30, 2009.
December 18, 2008 and January 30, 2009 were to be added to an ongoing HRTO case. Not the union filing another grievance.
10The respondent agrees that the incidents listed in the union’s letter were not specifically dealt with in the grievance process. The respondent disputes that the collective agreement fails to provide a mechanism for dealing with the issues. Rather, it argues that the allegations were not addressed because they were not raised by the applicant before he filed this Application.
11The respondent states that the only allegations that post-date the settlement agreement relate to December 18, 2008 and January 30, 2009. The applicant disputes this.
Analysis
12Requests to Dismiss are treated under section 45.1 of the Code, which states:
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.
13It is clear that the settlement of a grievance generally constitutes an appropriate resolution to the other proceeding within the meaning of s. 45.1. See, for example, Van Barneveld v. I.O.O.F. Seniors Homes, 2009 HRTO 448.
14It is undisputed that the alleged incidents listed in the union’s letter have not been dealt with by way of a grievance or other proceeding. The respondent suggests that Application cannot properly address these alleged incidents because the applicant should have brought the allegations to its attention prior to filing the Application.
15Pursuant to 2008 amendments to the Code, the Tribunal will not dismiss an application simply because a grievance process could have been initiated regarding the same issues.
16I am satisfied that the incidents described in para. 9 were the subject of the December 3, 2008 settlement agreement. On this basis, those portions of the Application described in the recital provided with the grievance (and set out in para. 9 of this Interim Decision) are dismissed.
17I find that all other aspects of the Application have not been appropriately dealt with in another proceeding within the meaning of section 45.1. In regards to these aspects of the Application, the respondent’s request for dismissal is denied.
18I have reviewed the further submissions filed by the respondent on February 12, 2010. Neither those submissions nor the transcript they refer to have any material bearing on this Interim Decision.
19I am not seized of this matter.
Dated at Toronto, this 16th day of February, 2010.
“Signed by”
Michelle Flaherty
Vice-chair