Sharon Goldthorpe v. Markham Stouffville Hospital, 2011 HRTO 596

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Sharon Goldthorpe Applicant

-and-

Markham Stouffville Hospital Respondent

-and-

Canadian Union of Public Employees, Local 3651 Intervenor

INTERIM DECISION

Adjudicator: Ena Chadha Date: March 28, 2011 Citation: 2011 HRTO 596 Indexed as: Goldthorpe v. Markham Stouffville Hospital

WRITTEN SUBMISSIONS

Sharon Goldthorpe, Applicant: Patrick James, Representative of the Applicant

Markham Stouffville Hospital, Respondent: Sarah A. Eves, Representative of the Respondent

Canadian Union of Public Employees, Local 3651: Ryan Goldvine, Representative of the Union

1The applicant filed an Application on December 6, 2010, under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) alleging discrimination with respect to employment on the basis of disability. In her Application, the applicant indicated that the facts of the Application are part of an outstanding grievance.

2On January 21, 2011, the Tribunal issued a Notice of Intent to Defer to the parties and the applicant’s union indicating that the Tribunal was considering deferring the Application pending the resolution of another legal proceeding dealing with the subject matter of the Application pursuant to Rule 14 of the Tribunal’s Rules of Procedure. The Tribunal invited the parties and the union to file submissions no later than 30 days from January 21, 2011 as to why consideration of the Application should or should not be deferred.

3On February 16, 2011, the applicant’s union filed a Request to Intervene. The union seeks to intervene in this Application because, as the applicant’s bargaining agent, the union has an interest in the Application. The union submits that it represents the applicant with respect to her grievance. The union indicates that while the grievance remains outstanding, no dates have been set for the hearing and that the union is unaware of any developments regarding the applicant’s circumstances since October 2009. The union requests that it be granted full party status. The union stated that it takes no position with respect to the issue of deferral.

4On February 18, 2011, the applicant filed submissions opposing deferral. The applicant did not make any submissions regarding the union’s Request to intervene.

5On February 18, 2011, the respondent filed submissions with respect to the issue of deferral and also filed a Request for Order During Proceedings (“Request”) asking the Tribunal to dismiss the Application because the Application was not filed within the one year of the last incident of alleged discrimination. The respondent did not make any submissions regarding the union’s Request to intervene.

REQUEST TO INTERVENE

6In accordance with the Tribunal’s standard practice where an applicant is a member of a bargaining unit represented by the union, the union’s Request to intervene is granted. The style of cause is amended to add the union as an intervenor

DELAY

7Neither the applicant nor the union has filed any submissions with respect to the respondent’s Request to dismiss because of delay.

8Section 34 of the Code provides:

(1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series.

(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

9In these circumstances, it is appropriate to receive submissions from the applicant and the union with respect to the respondent’s Request to dismiss. The Tribunal directs as follows:

• Within 21 days of the date of this Interim Decision, the applicant and the union are directed to file written submissions, any supporting documents and legal authorities with Tribunal, copied to the respondent, indicating what was the date of the last incident or series of incidents to which the Application relates and whether the delay in filing the Application was incurred in good faith and no substantial prejudice will result to any person affected by the delay;
• If the respondent wishes to file written submissions in reply to the applicant, the respondent may file additional written submissions, any supporting documents and legal authorities within 14 days from receipt of the applicant’s and the union’s materials;

10The Tribunal will consider the parties’ submissions, and may determine either issue of delay or deferral based on the parties’ written submissions, and/or may schedule future steps accordingly.

11I am not seized.