Jean v. Résidence St. Louis, 2011 HRTO 1800

B E T W E E N:

Lucie Jean Applicant

and-

Résidence St. Louis (Bruyère Soins Continus) and Nicole McEachren Respondents

INTERIM decision

Adjudicator: Geneviève Debané Date: October 12, 2011 Citation: 2011 HRTO 1800 Indexed as: Jean v. Résidence St. Louis

Oral SUBMISSIONS

Lucie Jean, Applicant ) Self-represented

Résidence St. Louis (Bruyère Soins Continus) and ) Andre Champagne, Nicole McEachrenx, Respondents ) Counsel

Le Syndicat Canadien de la fonction Publique ) Jean-Michel Corbeil, et sa section locale 3189, Respondent ) Counsel

1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) on June 17, 2010 alleging discrimination in employment on the basis of disability.

2Résidence St. Louis (Bruyère Soins Continus) (the “Corporate Respondent”) and Nicole McEachren, the Director of Care, (collectively the “respondent employer”) filed a Response on December 3, 2010 denying the allegations in the Application and taking the position that the Application should be dismissed pursuant to section 45.1 of the Code on the basis that the applicant filed a grievance that was settled at mediation.

3The applicant also named her union, Le Syndicat Canadien de la fonction Publique et sa section locale 3189 (the “respondent union”), as a respondent to the Application. In its Response the respondent union took the position that it should be removed as a respondent since the Application against it had no reasonable prospect of success.

4On April 11, 2011, the Tribunal issued an Interim Decision that advised the parties that it would deal with the two preliminary issues raised by the respondents, and in addition whether the Application should be dismissed as an abuse of process. A conference call was held on September 8, 2011 to deal with these preliminary issues.

Background

5The parties agree on the following facts. The corporate respondent operates a long term care residence where the applicant is employed. In the summer of 2009, the corporate respondent reassigned tasks, which resulted in the applicant being required to give additional baths to residents during her shift. On August 14, 2009, the respondent union filed a grievance pursuant to the collective agreement on the applicant’s behalf, which was referred to mediation on October 19, 2009.

6Thereafter, the applicant and the corporate respondent had numerous exchanges with respect to clarifying the applicant’s medical restrictions, if any. It appears that the applicant refused to attend a functional abilities evaluation and as of the date of the conference call the applicant was still not back at work.

7There is no agreement between the parties as to when exactly the applicant advised that the alleged reason that she did not want to give additional baths was because she required accommodation and whether in fact she does require such accommodation. For the purposes of this Interim Decision, this issue does not need to be decided by the Tribunal.

Position of the parties

8The respondent employer takes the position that the matter was settled between the parties at mediation and that the respondent union signed an agreement entitled “Terms of Settlement” (the “agreement”) which states:

The Union and the Gri