Jo (Joy) Erickson v. Regional Municipality of Durham, 2011 HRTO 1461

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jo (Joy) Erickson Applicant

-and-

Regional Municipality of Durham Respondent

-and-

Canadian Union of Public Employees, Local 1764 Intervenor

DECISION

Adjudicator: Eric Whist Date: August 3, 2011 Citation: 2011 HRTO 1461 Indexed as: Erickson v. Durham (Regional Municipality)

APPEARANCES:

Joy Erickson, Applicant ) Self-Represented Regional Municipality of Durham, Respondent ) Matthew Wilson, counsel Canadian Union of Public Employees, Local 1764, Intervenor ) Elizabeth Nurse, counsel

1This Application was filed on March 29, 2010 under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Application alleges discrimination in employment on the basis of perceived disability.

2In an Interim Decision dated February 16, 2011, 2011 HRTO 334, the Tribunal determined that a half day in-person hearing would be held to consider the respondent’s request to dismiss. The respondent submits in its Response that the applicant has filed a number of grievances regarding unsuccessful job posting efforts and a further grievance alleging discrimination and harassment and that these grievances were settled by a mediator/arbitrator who remains seized of the settlements and issues. The respondent contends in its request to dismiss that these settled grievances appropriately address the substance of the Application and, as such, the Application should be dismissed pursuant to section 45.1 of the Code. The respondent also submits that the majority of the allegations contained in the Application should be dismissed as they fall outside the one year timeframe for filing an application set out in section 34(1) of the Code and, pursuant to section 34(2) of the Code, the applicant has not provided a good faith reason for the delay in bringing these allegations forward to the Tribunal. The respondent further submits that the Application should be dismissed as the applicant has failed to establish a prima facie case of discrimination in that she has failed to identify how any of the facts alleged in the Application are related to discrimination based on disability or any other prohibited ground under the Code.

3In its Interim Decision the Tribunal identified five issues arising from the respondent’s request to dismiss that the parties should be prepared to address at the hearing. In its Interim Decision the Tribunal also granted a request to intervene made by the applicant’s union, the Canadian Union of Public Employee’s Local 1764 (the “union” or “CUPE”) on the basis that it is the applicant’s bargaining agent and has been involved in assisting the applicant with respect to some of the issues raised in her Application through its representation in the workplace and through the grievance procedure.

4The hearing was held on July 21, 2011. I heard submissions from the respondent, the applicant and the union. I have also considered information contained in the Application, the Response, the Reply (and attached documents) as well as further written submissions from the applicant and the union, and case law provided by the union and the respondent.

BACKGROUND

5The applicant is a part time Case Worker 2 in the respondent’s Social Services Department. The applicant began working for the respondent in 1992. In 2002, the applicant had an operation and was off work for six months because of health related reasons and because of a need to care for a sick relative. The applicant states that she subsequently chose to return to work on a part time basis.

6In 2006, the applicant applied for a full time Case Worker 2 position and in the period 2006 to 2009 unsuccessfully applied for several full time Case Worker 2 positions. The applicant filed a number of grievances during this time period in relation to her efforts to obtain a full time position. The applicant also filed grievances in November 2008 alleging harassment by her supervisor and, it appears, for having been disciplined without just cause when issued a verbal warning. On October 2, 2008, the applicant signed a settlement agreement to resolve several of her grievances. This settlement agreement determined what job posting process would be followed if a future full time Case Worker 2 position became vacant. The applicant signed a second settlement agreement on September 11, 2009. In this settlement the applicant agreed not to apply for any further full time positions with the respondent and to withdraw any and all outstanding grievances in exchange for being transferred to a position in Uxbridge (closer to her home) and for being provided with a minimum 21 hours of employment per week. The mediator/arbitrator agreed to remain seized with any issues arising from the implementation of this settlement.

7The applicant contends that she signed this settlement under duress, that she was not feeling well at the time that she signed, including having chest pains.

8The applicant alleges that since she transferred to Uxbridge in October 2009 she has been the subject of undeserved disciplinary letters, two very derogatory performance appraisals, and has been in disputes over how her hours of work should be scheduled. The applicant believes that since being transferred to Uxbridge she has been micromanaged and suggests that this may be a punitive response to her grievances.

9The Application alleges discrimination on the basis of perceived disability. The applicant explained at the hearing that she believes that one possible reason that she was not hired in a full time position from 2006 to 2009 was because the respondent believed she would not be capable of working full time given that the applicant took time off work in 2002 for health reasons. The applicant alleges that this constitutes discrimination based on a perceived disability.

ANALYSIS

Section 45.1 and Abuse of Process

10In its Interim Decision the Tribunal asked the parties to address whether, pursuant to section 45.1 of the Code, the Application should be dismissed in whole or in part because the mediated settlements of the applicant’s grievances had appropriately dealt with the substance of the Application.

11At the hearing there was no dispute that the grievances filed by the applicant dealt with the same facts that the applicant raises in her Application in relation to events that occurred prior to her transfer to Uxbridge in October 2009. The Application refers to the applicant’s various efforts to obtain full time work and the alleged harassment by her supervisor. These are the subject of her grievances. (The issue of the applicant being disciplined without just cause when issued a verbal warning, which she apparently grieved, does not form part of the Application). However, it was not contended and there is no indication that these grievances included allegations that the applicant was discriminated against on the basis of a perceived disability. There was no information before me to suggest that this allegation of discrimination was address in any of the grievance procedures or specifically considered as part of the mediated settlements.

12There was an issue at the hearing as to whether one particular grievance, Grievance #2008-SS-23, did raise allegations of Code related discrimination and harassment. This was the grievance filed by the applicant alleging that she was harassed by her supervisor. This grievance was filed under section 5 of the Collective Agreement, an anti-discrimination provision that states that there shall be no discrimination within the meaning of the Code. When the applicant was asked at the hearing what was the nature of the harassment she was alleging in her grievance she described the harassment as political, based on the applicant having complained about full time job competitions. A Step 3 Grievance Response letter from the employer dated May 28, 2009 that was in evidence before me states that the applicant’s union representative had, during the grievance process, failed to identify the prohibited ground under the Code that was being alleged to have been violated. In my view this grievance cannot be said to have addressed the central allegation contained in the Application, namely that the applicant was discriminated against on the basis of a perceived disability.

13The Tribunal has held that in order to dismiss an Application under section 45.1 it has to be shown that human rights principles were considered in the other process (See Byaruhanga v. Toronto Police Services Board, 2010 HRTO 2273; Zu v. Hamilton, 2010 HRTO 2461, Colella v. Toronto Catholic District School Board, 2010 HRTO 678). In the present case there is no evidence that the allegations of discrimination raised in the Application were raised or considered in the grievance process or as part of the mediated settlements. Consequently, I find that it is not appropriate to dismiss those parts of the Application that raise allegations of discrimination prior to September 11, 2009 on the basis of section 45.1 of the Code.

14However, that said it would, in my view, be an abuse of process to allow the applicant to now, as part of her Application before the Tribunal, raise the allegation of discrimination based on perceived disability in relation to events prior to September 11, 2009.

15In Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44 the Supreme Court of Canada writes the following regarding the doctrine of abuse of process:

The law rightly seeks a finality to litigation. To advance that objective, it requires litigants to put their best foot forward to establish the truth of their allegations when first called upon to do so. A litigant, to use the vernacular, is only entitled one bite at the cherry … An issue, once decided, should not generally be re-litigated to the benefit of the losing party and the harassment of the winner. A person should only be vexed once in the same cause. Duplicative litigation, potential inconsistent results, undue cost, and inconclusive proceedings are to be avoided.

16In the present case the applicant entered into two settlements with the respondent to resolve the issues raised in her grievances about how various job competitions were run and how she was treated by her supervisor. The second of these negotiated settlements was that the applicant would no longer apply for full time positions, that she would no longer pursue her grievance about her supervisor’s actions and in exchange, would be transferred to a preferred location and would be provided with a guaranteed number of hours of employment. The applicant now wants to relitigate these settlements before the Tribunal on the basis of that the settlements do not address her concerns that she was discriminated against.

17I do not see why the applicant could not have raised her human rights concerns as part of her grievances. There was no evidence before me that the applicant was unaware of her Code rights or that these grievances would have been unable to incorporate her human rights concerns. Grievance procedures readily allow for the raising of human rights issues and indeed the applicant’s grievance about her supervisor’s harassment was made under an anti-harassment provision of the collective agreement although, as I have earlier pointed out, it does not actually raise, in my view, an allegation of a Code violation.

18In Manhas v. A.O. Smith Enterprises, 2010 HRTO 659 the Tribunal determined that an arbitration process had considered the facts contained in an Application but the applicant had not raised during the arbitration process any allegations of discrimination in relation to these facts. The Tribunal found that it would violate the principles of judicial economy and the integrity of the administration of justice and amount to an abuse of process to allow that application to proceed.

19As stated in Danyluk, supra a litigant should be prepared to put their best foot forward to establish the truth when first called upon to do so. Under these circumstances and in view of Danyluk, supra and Manhas supra I do not see why the applicant should be allowed, in effect, to relitigate the mediated settlements she signed on October and September 11, 2009.

Duress

20The applicant submits that she signed the September 11, 2011 settlement under duress thus raising the issue of whether this settlement was fairly arrived at and should be the basis for precluding the applicant from further litigation. The applicant submits that at the time of the settlement she had high blood pressure, and that on the day she signed the settlement she was experiencing chest pains. She spoke about the pressure of making a decision under these circumstances.

21Both the respondent and the Union submit that the applicant did not sign the settlement under duress and that her circumstance does not meet the test for duress that the Tribunal has established. The respondent and Union referred to a number of Tribunal cases including Luo v. Dell Canada, 2010 HRTO 879; Hynes v. Cumis Group 2009 HRTO 1783 and Zu v. Hamilton (City) 2010 HRTO 2461.

22I find that the applicant has not shown that she signed the settlement under duress. The applicant did refer to having chest pains and high blood pressure, however, I have no medical evidence before me as to how significant these conditions were at the time the settlement was signed. The applicant also described the pressures related to making the actual decision. However, there is no evidence before me to indicate that her pre-existing medical conditions or the stresses related to the settlement process limited her judgement and her ability to exercise her will. It is clear that the applicant found the decision as to whether to accept the settlement offer difficult however, the applicant did not contend nor was there evidence that she did not understand the decision she was taking or that she was coerced into making the decision.

23Given my decision that the September 11, 2009 settlement was not signed under duress and that it would be an abuse of process to allow the Application to proceed in relation to allegations related to events that took place prior to September 11, 2009. I do not need to make any further determinations as to whether those parts of the Application that refer to events prior to March 29, 2009 (one year prior to the filing of the Application) should be dismissed for delay under section 34 of the Code.

Events after September 11, 2009 and Prima Facie Discrimination

24The Application alleges that since being transferred to Uxbridge in October 2009 the applicant has been subjected of unfair disciplinary letters, two unduly harsh performance appraisals and to an unexpected and unwanted work schedule. The Application alleges that this scrutiny and micromanaging of her work is a punitive response to her grievances.

25I find that the applicant has failed to establish a prima facie case of discrimination in relation to any of the respondent’s actions after she transfers to Uxbridge. The applicant has failed, in my view, to establish any nexus between the respondent’s actions and the alleged ground of discrimination namely perceived disability.

26As stated in Jagait v. IN TECH Risk Management, 2009 HRTO 779

The onus is on the applicant to establish a prima facie case of discrimination. A prima facie case is one which covers the allegations made and which, if they are believed, is complete and sufficient to justify a finding in the applicant's favour in the absence of an answer from the respondent: see Ontario Human Rights Comm. v. Simpsons-Sears, 1985 CanLII 18 (S.C.C.), at para. 28. Upon establishing a prima facie case, the burden shifts to the respondent to provide a credible and rational explanation demonstrating, on a balance of probabilities, that its actions were not discriminatory.

It is well-established that the threshold for establishing a prima facie case of discrimination is not high, discrimination is often not overt, the employer may have knowledge of facts or possess evidence of discrimination that is not accessible to an employee whose employment is terminated, and that in many, if not most, cases the burden will shift to the respondent to provide a non-discriminatory reason for its actions. On the other hand, where the applicant has failed to establish a prima facie case, it is neither legally correct nor, in my view, fair, just and expeditious to shift the burden to the respondent to provide a non-discriminatory reason for its actions.

27The Tribunal has also stated that it may consider the question of prima facie case at a preliminary stage without hearing the evidence of the applicant using the threshold test of whether the applicant’s allegations, if accepted to be true, would be enough to establish a violation of the Code. See: Arias v. Centre for Spanish Speaking Peoples, 2009 HRTO 1025 at para. 7.

28In her Application the applicant provides a chronology of the respondent’s actions she is concerned with. There are only two explicit references in the Application to the applicant’s views that she has been discriminated against on the basis of perceived disability. In response to Question #10 in the Application (a question about the remedy being sought) the applicant states that she was discriminated against on this ground when she applied for a full time case worker position. In answer to Application Question #A15 which asks an applicant to explain why he or she believes they were harassed or discriminated against on the basis of disability or perceived disability the applicant writes:

Due to physical and emotional health issues I requested a work accommodation in 2003. A part-time caseworker position was created for which I successfully applied. Having recovered from my disability in July 2006 I started a full time I yr contract position. In Aug 2006, applied for permanent f/t. I’ve been failed # times in the interview process in my unsuccessful attempts to get f/t permanent.

29At the hearing the applicant was asked to further clarify her allegations of discrimination based on perceived disability. The applicant explained that she was of the view that the respondent refused to consider hiring her on a full time basis in the period 2006-2009 because of a belief that the applicant may not be able to successfully work on a full time basis given that she had to take time off work for medical reasons in 2002. In other words that her previous disability was being held against her in these job competitions.

30The applicant was then asked what the possible connection was between her allegations that the respondent unfairly supervised and evaluated the applicant’s work and subjected her to an unreasonable work schedule while she was working in Uxbridge and her allegation of discriminatory treatment based on a perceived disability. The applicant stated she did not know how perceived disability may be related to the respondent’s actions after her transfer to Uxbridge but did state that she felt she was still being punished. When the applicant was later given another opportunity to explain the connection between the respondent’s actions after her transfer and a possible violation of the Code based on perceived disability she simply stated that the respondent should be a better employer.

31I find that the applicant has no explanation, no theory of the case, to show a possible nexus (connection) between the respondent’s actions while the applicant was employed in Uxbridge and discrimination based on a perceived disability. Even if I accept as true all of the applicant’s allegations as to what happened in Uxbridge including the applicant’s contention that she was being punished (as claimed at her hearing) or that the respondent’s treatment of her was a punitive response to her grievances (as stated in her Application) this does not create a connection between the respondent’s actions and a possible Code violation. The applicant’s essential theory was that the respondents did not want to hire her full time because of concern that she would not be able to work additional full time hours because of a perceived disability. This does not explain why the respondent’s treatment of the applicant while working in an ongoing part time position with negotiated set hours would be discrimination based on a perceived disability.

32For these reasons the applicant’s allegations in reference to events after September 2009 are dismissed. As a result, the entire Application is dismissed since I have dismissed the remainder of the Application (namely the allegation of discrimination based on perceived disability in relation to events prior to September 2009) above based on abuse of process.