HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Gena Evaggelou Applicant
-and-
Maple Leaf Sports & Entertainment Ltd. and Brendan Costigan Respondents
INTERIM DECISION
Adjudicator: Kathleen Martin Date: June 2, 2011 Citation: 2011 HRTO 1033 Indexed as: Evaggelou v. Maple Leaf Sports and Entertainment
1This is an Application filed on June 2, 2009 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”). On November 17, 2009 the Application was deferred pending the completion of a related grievance process, (2009 HRTO 1939). This Interim Decision reactivates the Application, grants intervention to the union, and requests particulars from the parties related to the respondents’ request that the Application be dismissed because it has been settled.
Background
2The Application arises out of the applicant’s employment and termination of her employment. The remedy sought includes reinstatement without loss of seniority, compensation, and training of managers on human rights. The applicant was represented by a union in her employment and subsequent termination.
3The applicant’s union filed a Request to Intervene. In its Request, the union states that it is the exclusive bargaining agent for the employees in the organization respondent’s business, and indicates that it wishes to address the issue of reinstatement, matters involving discipline of the applicant, claims of sexual harassment, and/or issues of workplace accommodation.
4The applicant opposes the union’s Request on the basis that the union has not acted in her best interests by, among other things, misinforming her about the recourse available to her at the Tribunal.
5No response was received from the respondents and the issue of intervention was set aside pending the question of deferral.
6As noted above, the Application was deferred by Interim Decision dated November 17, 2009. In a subsequent Interim Decision dated April 26, 2010, the Tribunal denied the applicant’s request that her Application proceed and confirmed that the deferred status remained in effect (2010 HRTO 904).
7By letter dated February 2, 2011, the Tribunal sought clarification from the applicant as to whether the grievance process was still ongoing.
8On March 14, 2011, the Tribunal received responses from the applicant and respondents. The applicant requested that the Application proceed because the union accepted an offer to settle the grievance without her agreement. The respondents take the position that the Application should be dismissed because the Application was settled as part of the settlement of the grievance at an arbitration hearing on February 2, 2011. The respondents indicated that the arbitrator was in the process of issuing an award confirming the settlement.
9On March 18, 2011, the Tribunal issued a Case Assessment Direction directing the applicant and the respondents to file a copy of the arbitrator’s award within three days of its release.
10On March 25, 2011, the respondents filed a copy of the award of Arbitrator Roland, together with copies of the Memorandum of Agreement (“MOA”), Release, and Form 25. Among other things, the award confirms that the grievance was settled by Memorandum of Agreement dated February 2, 2011 and that following this settlement, the applicant refused to sign the MOA and the related documentation which included a Form 25 (the Tribunal’s settlement form). The award sets out the terms of settlement which govern if the applicant withdraws the Application and/or the Application is dismissed by the Tribunal, as well as terms should the Application proceed to be heard on its merits.
11The applicant is not a signatory to the Memorandum of Agreement, the Release, or Form 25.
Request to Reactivate
12The substance of the applicant’s request is that the Application be reactivated. While the respondents seek dismissal, before that request can be considered, the Application must be reactivated.
13Based on the submissions made, the Application is reactivated.
Request to Intervene
14As stated by the Tribunal, a union nearly always has an interest in a human rights application brought by an employee in a bargaining unit it represents, and, absent exceptional circumstances, will be granted intervention in an Application. See Boyce v. Toronto Community Housing Corporation, 2009 HRTO 131 at para. 13.
15In the circumstances of this Application, I see no reason to depart from the Tribunal’s usual approach in granting the union intervention. While the applicant has expressed frustration about her union’s conduct, I do not find that this affects my view of the union’s interest in the Application particularly given the extensive remedy being sought by the applicant.
16The union’s Request is therefore granted. The role of the union will be determined as the Application proceeds by the Vice-chair hearing the Application.
Next Steps
17Having regard to the respondents’ position, I find it appropriate to schedule a hearing to determine the issue of whether the Application should be dismissed because it has been settled by the parties.
18In order to determine whether the hearing should be in person or can proceed by conference call, the parties are directed to provide the following:
i. By June 16, 2011, the respondents should set out a summary of the basis for their request for dismissal including whether they are relying on any specific provisions in the Code and/or specific legal arguments; and a detailed summary of the facts that they intend to rely on to support the assertion that the Application has been settled, including what happened, who was involved, and what statements were made and by whom.
ii. By June 30, 2011, the applicant may provide a response to the respondents’ submissions, and if the applicant intends to prove a version of facts different from that set out in the respondents’ submissions, she should provide a detailed summary of her version of the facts; and
iii. By July 7, 2011, the union may file a response to the submissions of the parties, and if the union intends to prove a version of the facts different from either the applicant or respondents, the union shall provide a detailed summary of its version of the facts.
19The Tribunal will consider the material filed and may convert the hearing to a conference call. The manner of hearing will be confirmed by letter from the Registrar and/or a Case Assessment Direction.
Dated at Toronto this 2nd day of June, 2011.
”signed by”______________
Kathleen Martin Vice-chair