HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Margaret Warrick
Applicant
-and-
Service Employees International Union, CLC
Respondent
Interim Decision
Adjudicator: Naomi Overend
Indexed as: Warrick v. Service Employees International Union
1This Interim Decision addresses the respondent’s Request for Order During Proceedings (Form 10) requesting the Tribunal dismiss this Application as an abuse of process. For the reasons discussed below, the Request to dismiss is denied.
2The applicant filed an Application against the respondent alleging discrimination in employment on the basis of age contrary to the Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the “Code”). The applicant, who was employed by the respondent as an organizer, was a member of a separate union. She filed six grievances with respect to actions taken by the respondent. The parties acknowledge that the subject matter of the grievances overlaps with the subject matter of this Application.
3The respondent requested that the Tribunal defer her Application pending completion of the grievance process relating to five outstanding grievances. The applicant did not oppose deferral and in an Interim Decision issued in January 2009, 2009 HRTO 58, the Tribunal deferred this Application on consent.
4On December 20, 2010, the applicant filed a Request to re-activate her deferred Application, and by letter dated February 7, 2011 the applicant confirmed that the grievances were withdrawn. By Interim Decision dated March 3, 2011, 2011 HRTO 448, the Tribunal re-activated this Application.
5The respondent takes the position that the applicant’s decision to withdraw her grievances after the appointment of the arbitrator, and after attending a mediation before that arbitrator, amounts to an abuse of process pursuant to s. 23 of the Statutory Powers Procedure Act, R.S.O. 1990 c. S.22.
6Specifically, it argues that the applicant decided to withdraw her grievances because she feared that she would not receive a favourable result before the arbitrator. Her decision to proceed before this Tribunal because she believed she had a better chance of succeeding amounts to “forum shopping.”
7The applicant takes the position that she withdrew her grievances because she believed her grievances would be dismissed for preliminary reasons under the Collective Agreement and, hence, the merits of her allegations would not be addressed by the arbitrator.
8It is not necessary to resolve the dispute between the applicant and respondent about whether the arbitrator would be addressing the merits of the grievances or not, as the applicant’s decision to proceed before this Tribunal, as opposed to having the arbitrator adjudicate her dispute with the respondent, is not, on the face of it, an abuse of this Tribunal’s process.
9The respondent argues that the Supreme Court of Canada has interpreted the term “abuse of process” broadly, and that this Tribunal has also found that it “may include a broad variety of circumstances.” However, it was unable to point to a single authority that found that the term was broad enough to include these particular circumstances.
10It did point to a 2001 decision of the Ontario Court of Appeal, Thomas v. Ontario (Human Rights Commission) 2001 CanLII 5844 (ON CA), [2001] O.J. No. 4146, in which the Commission had refused to deal with the complaint of discrimination filed by the appellant because the complaint could be more appropriately dealt with under the provisions of the Labour Relations Act, 1995 S.O. 1995, c. 1, Sch. A.
11However, the Commission made that decision under the previous s. 34 of the Code, which gave it the authority to not deal with allegations that might more appropriately be dealt with under other legislation, a provision which has since been repealed. In any event, the Court of Appeal overturned the Commission’s decision as patently unreasonable on the basis that the arbitrator had not, in fact, dealt with the allegations of discrimination. It is not clear how this case assists the respondent in the instant case.
12There is no basis for dismissing this Application as an abuse of process and the respondent’s Request to do so is denied.
13In its Response, the respondent has raised other issues of concern but has yet to formalize them in a Request for Order During Proceedings. The Tribunal will deal with these issues in the event that it receives further Requests.
14I am not seized of this matter.
Dated at Toronto, this 26th day of July, 2011.
”signed by”____________
Naomi Overend
Vice-chair