Barbara Vasey v. St. Michael’s Hospital, 2010 HRTO 393

Human Rights Tribunal of Ontario

B E T W E E N:

Barbara Vasey Applicant

-and-

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

INTERIM DECISION

Adjudicator: Mark Hart Date: February 19, 2010 Citation: 2010 HRTO 393 Indexed as: Vasey v. St. Michael’s Hospital

1This is an Application made under s. 53(5) of the Ontario Human Rights Code, R.S.O. 1990, c.H.19, as amended (the “Code”) dated June 17, 2009. The underlying complaint was filed with the Ontario Human Rights Commission (the “Commission”) on March 29, 2005.

2The purpose of this Interim Decision is to address the respondents’ request for dismissal of the Application on the following bases: (1) that the substance of the Application has been dealt with appropriately by the Ontario Labour Relations Board (“OLRB”); (2) that the Application is untimely; and (3) that there is no prima facie case of discrimination.

The OLRB Decision

3The applicant is a member of the Ontario Nurses Association (“ONA”). She filed a complaint with the OLRB alleging that the union breached its duty of fair representation by failing to process a grievance related to harassment and discriminatory conduct, which also forms the basis of the allegations in the Application before this Tribunal.

4The applicant’s OLRB complaint was dismissed on the basis that ONA’s decision to take no further steps to process the applicant’s grievance was not a violation of its duty of fair representation under s. 74 of the Labour Relations Act (“LRA”).

5On this basis, the respondents submit that the OLRB has already dealt with the substance of the Application, such that the Application should be dismissed. I cannot accept this submission. The only matter determined by the OLRB was that ONA had not violated its duty of fair representation towards the applicant in relation to its decision not to process her grievance. The duty of fair representation under s. 74 of the LRA requires a union shall not act in a manner that is arbitrary, discriminatory or in bad faith in the representation of any of its members.

6The Application in the instant case was filed not against ONA, but against the corporate respondent as the applicant’s employer and two personal respondents who are employees of the corporate respondent. The allegations raised in the Application are that the applicant experienced harassment and discrimination in the workplace because of disability. Had ONA decided to process the grievance and had the grievance proceeded to arbitration and had the arbitrator ruled on the allegations of harassment and discrimination that form the substance of the Application, then the respondents would have had a viable basis upon which to seek the dismissal of the Application. But that clearly is not what happened. The only thing that the OLRB ruled upon was whether the union had failed to fulfil its obligations under s. 74 of the LRA, not whether the employer had violated the Code.

7As a result, the respondents’ request to dismiss the Application on the basis of the OLRB decision is denied.

Delay

8The respondents also request that the Application be dismissed because the facts upon which it is based occurred more than six months before the initial complaint was filed. In this regard, the respondents rely upon s. 34(1)(d) of the former Code.

9Section 34(1)(d) of the former Code was repealed when the current Code came into force on June 30, 2008. As a result, this provision is no longer a basis upon which a complaint can be dismissed.

10Under the current Code, the time limits for filing an application are addressed in ss. 34(1) and (2), which essentially provide that an application must be filed within one year of the last incident, although this time limit can be extended in certain circumstance.

11The issue is how the new provisions of the current Code interact with transition applications filed under s. 53 of the Code. Transition applications are applications that relate to complaints that had been filed with the Ontario Human Rights Commission prior to June 30, 2008 and are dealt with pursuant to Part VI of the Code. Essentially, during the first six month period following June 30, 2008, a transition application could be filed with the Tribunal pursuant to s. 53(3) of the Code in order to have access to a particularly expeditious process, or could be filed pursuant to s. 53(5) of the Code during the period from January 1 to June 30, 2009. The Application at issue in the instant case was filed pursuant to s. 53(5) of the Code.

12Section 53(6) of the Code states that the new Part IV of the Code applies to an application made under sections 53(3) or 53(5). Section 34 is in the new Part IV of the Code.

13As I have stated elsewhere, the statutory language makes it clear that section 34 applies to transition applications. In my view, the phrase “apply to the Tribunal” in s. 34(1)(a) and (b) needs to be interpreted in the context of transition applications to refer to the date that the underlying complaint was filed with the Commission in accordance with the then existing human rights system, particularly since all that is required for the initial filing of a transition application is for the applicant to file the underlying complaint together with a brief form that largely contains administrative information.

14As a result, the issue under the current Code is whether the complaint that underlies this Application was filed within one year of the last incident. The complaint was filed on March 29, 2005. The date of the last incident as cited by the respondents is September 1, 2004, which is well within the one year period.

15As a result, the respondents request for dismissal of the Application because of delay is denied.

Prima facie case

16The respondents take the position that the Application does not disclose a prima facie case of discrimination on the basis that the applicant’s employment was not terminated and on the basis that the applicant was not discriminated against because of disability.

17With regard to the former point, the respondents state that the applicant resigned her employment and was not terminated. It is not disputed by the applicant that she wrote a letter of resignation on September 1, 2004. However, there appears to be considerable dispute between the parties as to the circumstances under which this letter of resignation was written and the events that led up to this letter. The respondents also rely upon certain statements made by the union in materials filed with the OLRB regarding certain events following the applicant’s letter of resignation, including discussions about whether the respondent Hospital would permit the applicant to withdraw this letter.

18With regard to the latter point, the respondents outline efforts they made to accommodate the applicant’s disability and deny that they discriminated against her on this basis.

19These are not matters that properly are the subject of a preliminary request to dismiss for failure to make out a prima facie case. While the Application does include the allegation that the applicant was “effectively dismissed” from her employment, it also includes a series of allegations about how the applicant was treated in the workplace in the months leading up to the cessation of her employment. Further, the circumstances around the applicant’s departure from her employment and whether the applicant experienced discrimination or harassment because of her disability are very much at issue between the parties, and will need to be considered in the context of the evidence tendered at the hearing.

20As a result, the respondents’ request for dismissal of the Application for failure to make out a prima facie case is denied.