Human Rights Tribunal of Ontario
B E T W E E N:
Sophia Tuomela
Applicant
-and-
Sault Area Hospital
Respondent
-and-
National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW Canada)
Intervenor
INTERIM DECISION
Adjudicator: Ena Chadha
Indexed as: Tuomela v. Sault Area Hospital
1The applicant filed an Application on April 13, 2011, under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) alleging discrimination with respect to employment on the basis of disability. In her Application, the applicant noted that the facts of the Application were part of a grievance that was scheduled for mediation; however, the respondent employer withdrew from the mediation five days prior.
2On May 30, 2011, the applicant’s union, National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW Canada) (“Union”), filed a Request to Intervene. The Union indicated that it wished to intervene because it agreed with the applicant’s concerns that the respondent employer failed to provide accommodation and unfairly withdrew from the grievance mediation process.
3On June 2, 2011, the respondent filed a Response, which notes that the applicant’s allegations were previously the subject of a number of grievances - the first grievance with respect to sick pay and the second grievance with respect to an alleged failure to accommodate. The respondent requests early dismissal of the Application on the basis that another proceeding, namely the settlement of the applicant’s sick pay grievance, appropriately dealt with the substance of the Application. In the alternative, the respondent argues that since the applicant’s accommodation grievance remains outstanding, the Application should be deferred until the conclusion of the applicant’s accommodation grievance.
4On June 6, 2011, the Tribunal issued a Notice of Intent to Dismiss and/or Defer to the applicant and directed the applicant to file a Reply with submissions in response to the respondent’s Requests to dismiss and/or defer.
5On June 13, 2011, the applicant filed a Reply opposing deferral. The applicant confirms that the sick pay grievance was settled and withdrawn on the basis that the outstanding issue of the duty to accommodate was scheduled to be resolved by mediation. The applicant indicates that the respondent withdrew from this mediation and therefore her accommodation concerns remain outstanding. The applicant contends that the Union does not have the ability to file a new grievance due to timelines and, therefore, there is no other proceeding. The applicant indicates that the Tribunal process is the only recourse available to her and, hence, opposes dismissal of the Application.
6The parties have not made any submissions regarding the Union’s Request to Intervene.
REQUEST TO INTERVENE
7As the Tribunal indicated in Boyce v. Toronto Community Housing Corporation, 2009 HRTO 131:
A union or association nearly always has an interest in a human rights application brought by an employee in a bargaining unit it represents when the application alleges discrimination in employment. Absent exceptional circumstances, the applicant’s bargaining agent will be granted intervention status in Tribunal proceedings where it requests it.
8Based on the information contained in the file and the submissions of the Union, I am satisfied that the Union has an interest in the outcome of the Application. As such, and in accordance with the Tribunal’s standard practice where an applicant is a member of a bargaining unit represented by the union, the Union’s Request to Intervene is granted.
DISMISS/DEFER
9The respondent employer appears to indicate that a grievance settlement has resolved much of the Application and that the Tribunal should defer to the outstanding grievance process. The applicant and the Union appear to suggest that, while certain concerns were settled, the settlement was on the basis that accommodation issues would be resolved, but that the respondent employer unfairly withdrew from the settlement process causing the grievance to expire. In these circumstances, the Tribunal requires clarification of these matters.
ORDERS
10The Tribunal orders as follows:
i) The Union is granted intervenor status. The style of cause is amended to add the Union as an intervenor; and
ii) All parties are required to provide to the Tribunal and copied to each other, within 21 days of this Interim Decision, written submissions regarding the following:
What is the status of the applicant’s grievance(s)? Specifically, are the grievance(s) settled, alive or lapsed? If settled, what was the nature, terms and conditions of the settlement, and exactly what was resolved and what remains outstanding? If the grievance(s) is/are alive, what stage is/are the grievance(s) at? If lapsed, can the grievance(s) be reactivated?;
If any of the grievance(s) were settled, did the settlement appropriately deal with the substance of some or all of the substance of the Application pursuant to section 45.1 of the Code?
All parties are also required to advise whether they are agreeable mediation.
11The Tribunal will consider the parties’ written submissions, and may determine the issues based on the parties’ submissions, and/or may schedule future steps accordingly.
12I am not seized.
Dated at Toronto, this 18^th^ day of July, 2011.
”signed by”__________
Ena Chadha
Vice-chair