Saunders v. Ontario (Health and Long-Term Care), 2010 HRTO 902

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Cindy Saunders

Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Minister of Health and Long-Term Care

Respondent

INTERIM DECISION

Adjudicator: Michelle Flaherty

Date: April 27, 2010

Citation: 2010 HRTO 902

Indexed as: Saunders v. Ontario (Health and Long-Term Care)

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 family status in the context of employment. The applicant also alleges reprisal or threat of reprisal.

2In essence, the applicant is alleging that the respondent converted her part-time (3 day per week) position into a full-time position. Although the respondent offered the applicant an opportunity to job share, she says she was required to work four days per week, which interfered with her family obligations. The applicant’s main concern is that, as a result of the changes, she would be required to work Fridays.

3The respondent filed a Response in which it denies the allegations of discrimination. It seeks the early dismissal of the Application because it says a grievance settlement has appropriately dealt with the substance of the Application.

4A grievance was filed on behalf of the applicant on December 3, 2008. The grievance states:

I grieve the fact that 1 day/week (Thurs) was taken from me and given to a new hire as a job-share as I could not work Fridays due to childcare issues, which is against my human rights under family status.

5The grievance resulted in a settlement agreement, which was executed by the parties to this Application. The terms of the settlement include giving the applicant the option of working full-time or participating in a job share, resulting in a three day work week for her. According to the terms of settlement, the applicant had approximately three weeks from the date of settlement to explore childcare options and make her decision. She would not have been required to begin full-time work until July 1, 2009.

6The applicant filed a Reply. She states that the grievance did not resolve her issues and that the discrimination is ongoing. In particular, she states the settlement agreement does not address the fact that she is not working on Thursdays, nor does it deal with flexible scheduling and alternative work arrangements.

7Section 43(2) of the Code provides that the Tribunal shall not finally dispose of an application within its jurisdiction without affording the parties a chance to make oral submissions. Accordingly, the Registrar will schedule a telephone hearing to address the following issues:

a. Should the Application or a part of the Application against the respondents be dismissed pursuant to section 45.1 of the Code?

b. Should the Application or a part of the Application against the respondents be dismissed because the parties have reached a settlement and it would be an abuse of process to allow the Application or part of the Application to proceed?

8At the telephone hearing, the Tribunal will not address the merits of the Application. The sole purpose of the telephone hearing is to deal with the preliminary issue and the questions set out at paragraph 7.

9The following directions shall apply to the hearing:

a.The applicant should be prepared to proceed first at the hearing, by responding to the questions set out in paragraph 7, above.

b. Any party wishing to rely on written materials not already filed with the Tribunal or any facts not contained in the Application, Response or Reply must deliver such documents or information to the other parties and file them with the Registrar within 21 days of the date of this Interim Decision.

10I am not seized of this matter.