Florence Barry v. St. Michael’s Hospital and Tasha Osborne, 2011 HRTO 387

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Florence Barry

Applicant

-and-

St. Michael’s Hospital and Tasha Osborne

Respondents

INTERIM DECISION

Adjudicator: Sherry Liang

Date: February 22, 2011

Citation: 2011 HRTO 387

Indexed as: Barry v. St. Michael’s Hospital

WRITTEN SUBMISSIONS

Florence Barry, Applicant ) Paulette Haynes, Counsel

St. Michael’s Hospital and ) Ida Martin and

Tasha Osborne, Respondents ) Karen Sargeant, Counsel

1This is an Application filed on March 26, 2010 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the “Code”).

2The Application alleges discrimination in employment on the grounds of age, colour, disability and race. The applicant is a nurse employed by the respondent St. Michael’s Hospital (the Hospital), represented in her employment relations by the Ontario Nurses’ Association (ONA).

3By Interim Decision dated August 24, 2010, 2010 HRTO 1745, the Tribunal decided to defer the Application pending the conclusion of a related grievance filed by ONA on the applicant’s behalf. The applicant has now filed a Request for an Order During Proceedings, asking for her Application to be re-activated.

4The Request is opposed by the Hospital, on the basis that the grievance proceeding has appropriately dealt with the substance of the Application. The Hospital submits further that to allow the Application to proceed would result in an abuse of process, in effect giving the applicant a second “kick at the can.”

5For the reasons that follow, the Tribunal grants the Request to re-activate the Application.

BACKGROUND

6The Application arises out of events in late 2009 and early 2010, including the Hospital’s requirement that the applicant take a Health Assessment Course, her request for accommodation in the workplace due to a left shoulder injury, and her notification of an intent to resign which she subsequently revoked. After the revocation of her notice of intent to resign, the applicant was placed on an unpaid leave of absence pending completion of the Health Assessment Course.

7ONA filed a grievance relating to the unpaid leave of absence which proceeded through the grievance process after which ONA notified the respondent on July 14, 2010 of its intent to proceed to arbitration. As indicated above, having regard to the circumstances, the Tribunal decided to defer the Application, by Interim Decision, pending the conclusion of the grievance process.

8ONA filed a second grievance, dated September 9, 2010, alleging failure to accommodate and referencing provisions of the collective agreement as well as the Code.

9The Hospital states that the first grievance was scheduled for arbitration on November 22, 2010, at which time the parties agreed to put both grievances before the arbitrator. The applicant was in attendance. The parties entered into settlement discussions. As a result of the discussions, Minutes of Settlement were prepared. There were two sets of Minutes. The first set (Settlement A) was between the Hospital, ONA and the applicant, and would have resulted in the withdrawal of the grievances as well as this Application, in exchange for specified consideration. The Hospital and ONA signed Settlement A. The applicant wished to confer with her personal counsel before signing. Subsequently, her counsel advised the other parties that the applicant would not sign Settlement A.

10The second set of Minutes (Settlement B) was between the Hospital and ONA and provided that whether or not the applicant signed Settlement A, ONA would withdraw the grievances.

DECISION

11In Lemieux v. Guelph General Hospital, 2010 HRTO 1267, the Tribunal found that, absent some evidence of consent on the part of an applicant/grievor, the settlement of a grievance as between the union and employer did not lead to dismissal of the application under section 45.1 or as an abuse of process. Where, however, there is no indication that the applicant did not agree to the settlement and indeed, took the benefit of the settlement, the Tribunal has dismissed an application as an abuse of process: see Park v. Waterloo (Regional Municipality), 2010 HRTO 1604.

12I see no meaningful distinction between the facts in Lemieux and those before me. ONA, as the applicant’s bargaining agent, is entitled to withdraw the grievances. But absent her consent to a settlement that would have disposed of the issues in this Application, the applicant is entitled to proceed with the Application. The grievance process has concluded and the Tribunal accordingly grants the request to re-activate the Application.

13I am not seized of this matter.