Dalrymple v. 412506 Ontario Ltd., 2011 HRTO 1668

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Alison Dalrymple Applicant

-and-

412506 Ontario Ltd. o/a St. Jacques Nursing Home Respondent

-and-

Canadian Union of Public Employees, Local 3303 Intervenor

INTERIM DECISION

Adjudicator: Alison Renton Date: September 8, 2011 Citation: 2011 HRTO 1668 Indexed as: Dalrymple v. 412506 Ontario Ltd.

WRITTEN SUBMISSIONS BY

Alison Dalrymple, Applicant ) Self-represented 412506 Ontario Ltd. ) St. Jacques Nursing Home, Respondent ) Sheri Farahani, Counsel Canadian Union of Public Employees, Local 3303, Intervenor ) Sue Lott, Counsel

1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code") on June 2, 2010. In her Application, the applicant alleges that on June 30, 2009 she suffered a workplace injury for which she was absent from the workplace from July to August 2009. She alleges that she provided the respondent with medical documentation substantiating her absences to August 10, 2009. She was not able to attend her August 10, 2009 doctor's appointment because of a family emergency within the doctor's family, but she obtained another medical note on August 13, 2009 for the period following August 10, 2009. When she arrived at home, she found that the respondent had left a voicemail message for her terminating her employment.

2Subsequent to her termination, the applicant received benefits under the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sched. A ("WSIA") and participated in a labour market re-entry ("LMR") program under the WSIA. While she was on the LMR program, and many months after she was terminated, the applicant alleges that the respondent suddenly offered her modified work. This complicated her WSIA situation, and compromised her LMR program, to which she has objected.

3The applicant's workplace was unionized and during her employment she was represented by the Canadian Union of Public Employees, Local 3303 ("the union"). She asserts that the union has not represented her very well.

4The respondent filed a Response. In addition to responding to the Application, the respondent requested that the Tribunal defer the Application because of a grievance filed September 15, 2009 by the union in relation to the applicant's termination and because of outstanding proceedings under the WSIA.

5The union filed a Request to Intervene on September 29, 2010. Neither party filed submissions in response to the Request to Intervene and the time for doing so has passed.

Request to Intervene

6Rule 11.1 of the Tribunal's Rules provides that:

The Tribunal may allow a person or organization to intervene in any case at any time on such terms as the Tribunal may determine. The Tribunal will determine the extent to which an intervenor will be permitted to participate in a proceeding.

7As stated by the Tribunal in Boyce v. Toronto Community Housing Corporation, 2009 HRTO 131 and Woito v. Marianhill, 2011 HRTO 1437:

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.

8Pursuant to Boyce and Woito, above, the Tribunal's established practice where an applicant is a member of a bargaining unit is to grant intervenor status when requested by the union; see other recent examples: D.R. v. Upper Grand District School Board, 2011 HRTO 1187; Oxley v. Vaughan (City), 2011 HRTO 1295; Yonis v. Newalta Corporation, 2011 HRTO 1352, and Pak v. Toronto (City), 2011 HRTO 1356.

9Having reviewed the Application, Response and Reply, it appears that the union has a significant interest in the allegations and accordingly it is granted intervenor status. The style of cause is amended accordingly.

Deferral

10Section 45 of the Code confirms the Tribunal's authority to defer consideration of an application. Under Rule 14 of the Tribunal's Rules of Procedure, the Tribunal may, on its own initiative, defer consideration of an application after providing notice of its intention to do so to all parties and giving them an opportunity to make submissions.

11On October 5, 2010, the Tribunal issued a Delivery of Response and Notice of Request to Defer and requested that the applicant file a Reply and a response to the respondent's request to defer. The applicant filed a Reply in which she objected to the respondent's request to defer.

12A mediation was held with the parties and the union on April 18, 2011, but the matter was not resolved. The Tribunal issued a letter dated May 12, 2011 seeking submissions from the applicant on the status of the grievance and the WSIB proceedings and providing the respondent and the union an opportunity to respond to the applicant's submissions. The applicant has filed material in response to the Tribunal's May 12, 2011 letter, to which the respondent and the union have responded.

Deferral Because Of The Grievance

13The Tribunal will generally defer an application where there is an ongoing grievance under a collective agreement based on the same facts and issues. However, the Tribunal must also consider, in light of particular circumstances of each case, whether deferral is the most fair, just and expeditious way of proceeding with the Application.

14A grievance was filed by the union with respect to the applicant's termination on September 15, 2009. By correspondence dated August 5, 2011, the union has advised the Tribunal that it has decided to refer the grievance to arbitration and the respondent has agreed to waive the time lines for the referral of the grievance to arbitration.

15I do not find it appropriate to defer this Application because of the outstanding grievance. The grievance was filed almost two years ago and the union has recently advised that it has decided to refer the grievance to arbitration. As of the date of this Interim Decision, the Tribunal has not been advised of any date set for arbitration and has not been provided with documentation showing that the grievance has in fact been referred to arbitration.

16The referral to arbitration is also well after the Tribunal's process was initiated. The parties have filed substantive pleadings and a mediation has been held. At this stage of the Tribunal's proceedings I do not find it appropriate to defer the Application because of the outstanding grievance.

Deferral Because Of The WSIB Proceedings

17I also find that it is not appropriate to defer the Application because of the WSIB proceedings. While both parties have submitted that the applicant has objected to some of the WSIB determinations, no hearing dates before the Workplace Safety and Insurance Appeals Tribunal are identified in the parties' submissions and the Tribunal is unsure of the stage of those objections.

18From the applicant's perspective, the respondent attempted to provide her with modified work many months after her termination which, she claims, affected her LMR entitlements and demonstrated a failure to accommodate. From the respondent's perspective, the applicant seeks remedies (such as reinstatement of the LMR program and its benefits) that may not be within the jurisdiction of the Tribunal, and various WSIB findings will have an impact on any loss of earnings calculations in the event that the applicant is successful with her Application.

19I see that those are issues that can be raised during the hearing and perhaps form the basis for the hearing to be bifurcated on remedy, if a Code violation is found. I do not see how the WSIB proceedings impact on the central issue in the Application, that being the termination of the applicant in August 2009, and whether her termination violated the Code.

20Accordingly, I do not find it appropriate to defer the Application because of the WSIB proceedings. Therefore, the Application will be in the Tribunal's queue to be scheduled for hearing.

21I am not seized of this matter.