Superville v. Extendicare Canada Inc., 2011 HRTO 1811

Human Rights Tribunal of Ontario

B E T W E E N:

Erica Superville

Applicant

-and-

Extendicare Canada Inc. and Sandy Hall

Respondents

Canadian Union of Public Employees and its Local 1394

Intervenor

INTERIM DECISION

Adjudicator: Naomi Overend

Date: October 5, 2011

Citation: 2011 HRTO 1811

Indexed as: Superville v. Extendicare Canada Inc.

1The Interim Decision addresses the applicant’s request to amend her Application, the Canadian Union of Public Employees (CUPE) and its Local 1394’s request to intervene and the Tribunal’s request for submissions on deferral.

REQUEST TO AMEND

2The applicant filed her Application alleging discrimination in employment on the basis of race, colour, disability and reprisal contrary to the Human Rights Code, R.S.O.1990, c. H.19, as amended, (the “Code”) on May 4, 2010. As noted in an earlier Case Assessment Direction (CAD) issued by me, the Application contained multiple duplicate pages, which described events in a non-chronological fashion, often incoherently. Despite the many attempts by the Tribunal to have the applicant file further information in response to Notices of Incomplete Application, it was impossible to discern the allegations in the Application.

3This was noted in the Response filed on behalf of the respondents, which contains only minimal information and does not set out the respondent’s position with respect to the allegations.

4In her Reply, filed by a new representative, the applicant attempted to rectify the deficiencies by setting out her allegations in a somewhat clearer fashion, as well as articulating additional allegations. I noted in the CAD that this was not a proper place in which to do this, and directed the applicant to file a Request for Order During Proceedings seeking to amend her Application.

5The applicant complied with this direction, and an amended Application was appended to her Request to Amend. The respondent objected to the new document on the basis it sets out new allegations, requests new remedies and “continues to be deficient” in that “[t]he facts provided continue to be confused and not logically linked to the allegations of violations of the Code.”

6Although the particulars set out in the amended document are not always clearly articulated, they are set out in a chronological fashion and should provide a basis for the respondents to respond to them. If there is no logical link to the Code, this can be addressed by the respondents in their amended Response.

7Moreover, the respondents have not said they are prejudiced by the inclusion of the new facts or the amended request for remedy. In the interest of judicial economy, it is preferable to have the full dispute as part of the current Application rather than insisting that the facts which occurred after the applicant initially filed her Application form the basis of a separate application.

8Accordingly, the request to amend the Application is granted. The respondents are directed to file their amended Response by October 18, 2011.

REQUEST TO INTERVENE

9The applicant is a member of CUPE Local 1394, which filed a Request to Intervene (Form 5) on April 28, 2011. None of the parties filed a Response to the Request to Intervene and the time for so doing has now passed.

8The Tribunal has found on numerous occasions that a union nearly always has an interest in an application brought by a member of one of its bargaining units and that, absent exceptional circumstances, will be granted intervention status when it so requests it. There are no exceptional circumstances in this case.

9Moreover, given CUPE’s involvement with the applicant’s grievances, covering some of the issues in the Application, it can assist the Tribunal in determining the request to defer discussed below. Accordingly, CUPE is granted leave to intervene. Should the Application proceed to hearing, the scope of CUPE’s intervention will be determined by the adjudicator hearing the matter.

DEFERRAL

10In the CAD, I requested the parties’ submissions on whether the Tribunal should defer this Application pending the completion of the grievance process. The applicant filed submissions in opposition largely on the basis that she believes CUPE has not acted in her best interest and has “failed to adequately respond to her grievances.”

11The applicant’s submissions initially suggest that there is no grievance with respect to the January 7, 2010 incident set out in her Application, but then makes reference to the applicant attempting to file typewritten submissions to an unspecified grievance mediator concerning that incident. The applicant appears to suggest this incident is set out in a grievance dated January 8, 2010.

12The remaining submissions are equally oblique and it is simply not possible to tell at what stage the various grievances are at (or even whether they are ongoing). The respondent’s submissions are not helpful in this regard either, although by supporting the request for deferral, they appear to be suggesting that some or all of the grievances are extant. This is in contrast to their earlier submissions in their Response that the grievances “have been abandoned and deemed withdrawn.”

13CUPE’s Request to Intervene (Form 5), filed on April 28, 2011, contains incomplete information on the progress of the grievances. It does state, for example, that the January 8, 2010 grievance discussed above was scheduled to be put before Mediator Reilly on February 2, 2011, but does not state whether this took place. Likewise in respect of other “outstanding grievances” it states the parties met on April 1, 2010 but “no resolution was achieved.”

14The Tribunal cannot determine whether deferral is appropriate until it has an accurate understanding of the grievances. CUPE is directed to deliver to the parties and Tribunal by October 11, 2011 a list of the grievances that overlap with the allegations in the amended Application, and set out what it believes to be their current status. The applicant and respondents are directed to file any submissions in response by October 18, 2011.

Orders

15In sum, I have made the following orders/directions:

a. The applicant’s request to amend her Application by substituting the amended Application, which is appended to her Form 10, for her previously filed Application is granted;

b. The respondents are directed to file their amended Response to the amended Application by October 18, 2011;

c. CUPE Local 1394’s request to intervene is granted;

d. CUPE Local 1394 is directed to deliver to the parties and Tribunal a list of the grievances that overlap with the allegations in the amended Application, and set out what it believes to be their current status by October 11, 2011; and

e. The applicant and respondents are directed to deliver to each other, the intervenor and the Tribunal any further written submissions concerning deferral by October 18, 2011.

16I am not seized of this matter.