Brenda Shannon v. Corporation of the County of Renfrew, 2010 HRTO 930

Human Rights Tribunal of Ontario

Between:

Brenda Shannon Applicant

-and-

Corporation of the County of Renfrew Respondent

-and-

Canadian Union of Public Employees Local 3586 Intervenor

Interim Decision

Adjudicator: Eric Whist Date: April 28, 2010 Citation: 2010 HRTO 930 Indexed as: Shannon v. Renfrew (County)

1The Application was filed on September 8, 2009, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the "Code"). The Application alleges that the applicant was discriminated against in employment on the basis of disability. This Interim Decision addresses a Request for an Early Dismissal made by the respondent pursuant to section 45.1 of the Code.

Background

2The applicant is a full time Health Care Aide ("HCA") who works at the Miramichi Lodge, a long term care home operated by the respondent. The applicant was injured at work in February 2001 and, as a result, has several physical restrictions that limit her ability to do all the expected tasks of a HCA. It appears the applicant has been successfully accommodated in the workplace by being assigned to work with residents who are mostly ambulatory and do not require the use of mechanical lifters or transfers.

3The applicant currently works full-time on an evening shift in Unit "2A", one of Miramichi Lodge's six residential units. It appears that some residential units are less conducive to accommodating the applicant in that they house residents with particular needs (e.g. residents with dementia).

4In May 2009, a full-time day HCA position in Unit 1B became available for which the applicant applied. The respondent alleges that when the applicant was apprised of the fact that she did not have the physical capacities to work in this unit, the applicant indicated that her interest in applying for the job was in order to gain access to the full-time day job in Unit 2A and that other HCAs (i.e. the HCA occupying the daytime position in Unit 2A) could move to other units to accommodate this interest.

5The applicant acknowledges her interest in the full-time daytime position in 2A and expresses a frustration that persons with no physical restrictions have potential access to a much broader range of positions than those that have physical restrictions. It appears that the applicant finds this to be discriminatory.

6On May 28, 2009, the applicant was advised that her application for the HCA position in Unit 1B was denied as it was not within her physical restrictions and that she was successfully accommodated in Unit 2A. On June 17, 2009, the applicant formally filed a grievance complaining that the decision violated several sections of the collective agreement including the anti-discrimination provisions of the Agreement. The remedy the applicant was seeking was transfer to a full-time day position.

7On July 10, 2009, a second stage grievance meeting was held that apparently involved the applicant, three union representatives (the Local 3853 President, Chief Steward and a CUPE national representative) as well as Miramichi Lodge management. According to the respondent, the meeting included a review of the accommodation efforts to date and an admission by the applicant that her interest was in the day job in Unit 2A. The meeting ended with the union withdrawing the grievance. A letter dated July 13, 2009, signed by the President of the Canadian Union of Public Employees Local 3586 (the "Union"), confirms that "the Union is withdrawing this grievance". The applicant states in her Application that the "Union couldn't get mgmt to understand our case so we withdrew it."

8As part of its Response to the Application the respondent requested that the Application be dismissed under section 45.1 of the Code on the basis that another proceeding- the applicant's grievance- had appropriately dealt with the substance of the Application.

9In an Interim Decision dated March 2, 2010, 2010 HRTO 466, the Tribunal asked for submissions from the parties and from the intervenor, the Union, on whether the grievance process culminating in the meeting of July 10, 2009 and the subsequent withdrawal of the grievance constituted a proceeding under section 45.1 and whether the grievance had "appropriately dealt with" the substance of this Application. The Tribunal brought to the parties' attention to a recent Tribunal decision, Paterno v. Salvation Army Centre of Hope, 2010 HRTO 10 that determined that, in that case, the grievance procedure concluding with a withdrawn grievance did not constitute a proceeding that appropriately dealt with the substance of the Application and therefore the Application would not be dismissed under section 45.1.

Submissions

10The Tribunal has now received submissions from both parties and the union. Both the respondents and the union submit that the withdrawal of a grievance at a pre-hearing meeting of the parties can constitute a proceeding and a proceeding that appropriately deals with the substance of an application. For this proposition they rely on the Tribunal decision in Dunn v. Sault Ste. Marie (City) 2008 HRTO 149. The respondent and the Union submit that the present case is distinguishable from Paterno. In Paterno the Tribunal determined that the union unilaterally withdrew a grievance without the applicant's agreement or support and concluded that the substance of the Application was not dealt with by the grievance process, let alone "appropriately dealt with" and that under these circumstances, the grievance process did not constitute a proceeding under section 45.1. The respondent submits that in the present case the applicant conferred with her union representatives at the second stage grievance meeting on July 10, 2009 prior to the decision to withdraw the grievance and later indicated her involvement in the decision to withdraw by stating in her Application "we withdrew it". The respondent further notes that the Union's letter of July 13, 2009 withdrawing the grievance makes no mention of the grievance being withdrawn on a "without prejudice" basis.

11The respondent also relies on other findings in Dunn including paragraphs 33-35 which states that:

...when the parties freely choose to resolve the substance of a human rights dispute, in whatever forum it is brought, the matter is at an end. This is a fundamental principle that should guide the Tribunal in the interpretation of s. 45.1 because to do otherwise could make the finality of settlements highly unlikely.

The respondent further notes the principles quoted in Dunn from the Tribunal's decision in Campbell v Toronto District School Board 2008 HRTO 62 which state:

Section 45.1 gives expression to legislative intent to avoid duplication of proceedings and the re-litigation of issues that have been dealt with elsewhere;

The discretion given to the Tribunal in s. 45.1 is at least as broad as the doctrine of issue estoppel and abuse of process;

In determining whether another proceeding has appropriately dealt with the substance of the application, the Tribunal should not be overly technical;

The Tribunal does not act as an appellate court from the decisions of other tribunals and the Tribunal need not be satisfied that it would have reached the same conclusion as that reached in the other forum.

12The Union submits that the applicant's withdrawn grievance constitutes a proceeding under the meaning of section 45.1 and, like the respondent, argues that the present case is similar to the facts in Dunn and distinguishable from Paterno. The Union submits that the nature of the second stage grievance meeting resulting in the grievance being withdrawn constitutes a "proceeding" under section 45.1 as the facts of the case were such that it was not necessary for the parties to go to arbitration in order to decide the matter. The union further submits that the grievance appropriately dealt with the substance of the Application by the fact that it was a process that fully canvassed with the employer and the applicant the accommodation already in place for the applicant and the feasibility of the remedy the applicant was seeking through the grievance. The remedy the applicant was seeking was to be placed not in the job she applied for but rather a different, preferred job on the day shift in "2A". This would involve the displacement of another member of the bargaining unit which the Union submitted, was not permitted under the collective agreement. As a consequence the grievance was withdrawn.

13The applicant submits that when she conferred with her union representatives at the second stage grievance meeting she was told that the union was having a hard time getting the respondent to understand the point they were making and that the union thought it best to withdraw the grievance "without prejudice" explaining to the applicant that this meant that it could be brought back to the table at any time. The applicant states that she indicated to her union official her intention to pursue an application with the Tribunal and was told that she may get further with this Application.

Decision

14Section 45.1 of the Code provides as follows:

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.

15I have considered the parties submissions and decline to exercise my discretion to dismiss the Application on the basis of section 45.1. I have not been satisfied that the grievance process appropriately dealt with the substance of the Application. I do not accept that the present case is comparable to Dunn in which the applicant, the union and the employer entered into minutes of settlement which was basis for the applicant agreeing to withdraw his appeal. In Dunn the Tribunal concluded that as the parties had voluntarily entered into a binding settlement that resolved their human right dispute the parties could not reasonably expect that the same facts and issues would be re-litigated before the Tribunal.

16In the case of a settlement, as noted in Dunn, the parties indicate their intention to voluntarily resolve the issues in dispute in a manner acceptable to all parties even when one or more parties may not have obtained everything sought. In a settled case parties accept that the matters in dispute have been appropriately dealt with. In a settled case parties know or ought to know that the substantive issues that were raised will not be brought up in a different forum.

17However, there is no binding settlement in the case before me. There is a withdrawal of a grievance by the Union. While the withdrawal of the grievance may not have been unilaterally done by a union as was the case in Paterno it is not clear that the withdrawal indicates that the applicant understood and agreed that her concerns had been appropriately dealt with through the grievance process and that she could no longer pursue her rights in a different forum. The applicant's submits that she was told by a Union official that the grievance could be withdrawn without prejudice and the applicant was better off pursuing her human rights interests by other means and hence the statement in her Application that the "union could not get mgmt to understand our case therefore we withdrew it".

18I cannot conclude that a grievance withdrawn under these circumstances constitutes a proceeding that appropriately dealt with the applicant's allegations and that should be dismissed on a preliminary basis under section 45.1. Consequently, the respondent's request for early dismissal is denied.

19I am not seized of this matter.