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

INTERIM DECISION

Adjudicator: Eric Whist Date: February 16, 2011 Citation: 2011 HRTO 334 Indexed as: Erickson v. Durham (Regional Municipality)

1This Application, which 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”), alleges discrimination in employment on the basis of disability. This Interim Decision addresses a request to intervene and a request for the dismissal of the Application.

REQUEST TO INTERVENE

2Canadian Union of Public Employees Local 1764 asks to intervene 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. CUPE Local 1764 submits that the remedies requested in the Application may impact on or be governed by the terms and conditions of the collective agreement between CUPE Local 1764 and the respondent. Neither the respondent nor the applicant has responded to this request.

3CUPE Local 1764’s request to intervene is granted. It is the applicant’s bargaining agent and, as such, has an understandable interest in the outcome of the Application. CUPE Local 1764 has also been involved in the grievance proceedings that have involved many of the issues raised by the applicant in her Application.

REQUEST TO DISMISS

4On June 29, 2010, the respondent filed its Response to the Application, which includes a request for an early dismissal of the Application. Specifically, the respondent submits 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 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.

5The 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 a disability or any other prohibited ground under the Code.

6On July 5, 2010, the Tribunal sent a Notice of Respondent’s Request to Dismiss to the applicant. The applicant filed her Reply on July 13, 2010, in response to this Notice. The applicant submits that she has continued to be the subject of discrimination since the mediated settlement of her last grievance on September 11, 2009. She submits that she was discriminated in various job postings from 2006, arguing, it appears, that her grievances and mediated settlements did not appropriately deal with her concerns about the job postings. Similarly, she submits that she was subject to a verbal warning in May 2009 that was grieved and then settled and that this remains an issue of concern to her. She further submits that she settled her last grievance on September 11, 2009, under duress.

7The applicant submits that her Application is based on “perceived disability”’. According to the Application, the applicant had a disability in 2003 and has since recovered but continues to be unfairly treated.

DECISION

8The Tribunal will schedule a half-day in-person hearing to consider the respondent’s request to dismiss. At the hearing, the parties should be prepared to address the following issues:

• Pursuant to section 45.1 of the Code, should the Application be dismissed in whole or in part on the basis that the mediated settlements of the applicant’s grievances have appropriately dealt with the substance of the Application?

• The applicant alleges that there has been further discrimination since her grievances were settled. What is the significance of the fact that a mediator/arbitrator remains seized of the settlements of the applicant’s last three grievances when considering whether to dismiss the Application under section 45.1 of the Code?

• The applicant alleges that she signed the September 11, 2009 settlement under duress. What was the alleged duress and does it meet the legal test for duress as considered by the Tribunal in previous cases? See Luo v. Dell Canada, 2010 HRTO 879, and Hynes v Cumis Group, 2009 HRTO 1783.

• Should some of the applicant’s allegations be dismissed for delay because they fall outside the timeframe set out in section 34(1) of the Code for filing an Application? If some of these allegations are untimely, can the applicant show that the delay in filing her Application in relation to these allegations was incurred in good faith as required under section 34(2)?

• Do the allegations raised in the Application relate to a ground under the Code? On what basis is the applicant arguing that she has been discriminated against because of a perceived disability? Has the applicant established a prima facie case of discrimination?

9The parties are not required to provide any further documentary disclosure at this point in time. However, if any party, including the intervenor, wishes to rely on written material not already filed with the Tribunal or any facts not contained in the Application, Response or Reply, the party should deliver such documents or information to the other parties and file the same with the Tribunal no later than 14 days before the scheduled hearing.

10I am not seized of this matter.

Dated at Toronto, this 16th day of February, 2011.