Malcolm v. Centre for Addiction and Mental Health, 2011 HRTO 737

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Veronica Malcolm

Applicant

-and-

Centre for Addiction and Mental Health and April Collins

Respondents

-and-

Ontario Public Service Employees Union Local 500

Intervenor

INTERIM DECISION

Adjudicator: Naomi Overend

Date: April 15, 2011

Citation: 2011 HRTO 737

Indexed as: Malcolm v. Centre for Addiction and Mental Health

1The applicant filed this Application on September 10, 2009, alleging discrimination in employment on the basis of race, colour, ethnic origin and perceived disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”).

2The Response filed on behalf of the respondents argued that the Application should be dismissed for delay and, in the alternative, that the allegations, concerning events in 2007 should be dismissed as they were grieved and subsequently settled.

3The applicant’s union, the Ontario Public Service Employees Union Local 500 (“OPSEU”), has filed a Request to Intervene.

4This Interim Decision addresses the respondents’ Requests to dismiss, as well as OPSEU’s Request to Intervene.

INTERVENTION

5The applicant and the respondents did not take advantage of their opportunity under Rule 11.4 to file a response to the Request to Intervene, and have therefore neither agreed nor objected to the proposed intervention.

6A union almost always has an interest in a human rights application involving a member, and unless there are exceptional circumstances, the Tribunal will grant the bargaining agent intervenor status when requested. Accordingly, OPSEU’s Request to participate as a non-party intervenor is granted on the terms requested.

7The extent of the intervenor’s participation in the Tribunal’s proceedings will be determined by the Tribunal at each stage of the proceeding. With respect to the Preliminary Hearing set out below, OPSEU may make oral submissions.

Preliminary Hearing

8The outstanding issues raised in the Response will be dealt with in a one-hour Preliminary Hearing by teleconference, at which the parties and intervenor will be given the opportunity to make oral submissions on the matters set out below. As directed below, the parties are required to deliver to each other, and the intervenor, and file with the Tribunal further particulars and/or documents. Once the Tribunal is in receipt of this information, it may issue a Case Assessment Direction(s) providing further direction to the parties.

Delay/Prima Facie Case

9The respondents submit in their Response that the last allegation of discrimination alleged in the Application occurred in April 2008, 18 months before the applicant filed her Application in September 2009.

10My review of the Application shows the period between the last particularized incident and the filing is 17 months. This exceeds the limitation period set out in s. 34 of the Code by five months.

11In her Reply, the applicant responds to this assertion as follows:

At paragraph 3 of her Application the Applicant alleges that she has been the victim of a series of protracted incidents of harassment and discrimination which started the latter part of 2007 which has been continuous to the present.

12The Application, however, provides no particulars of alleged discriminatory acts occurring later than April 2008. The applicant is directed to provide written particulars of these continuous incidents referred to in the above passage. These are to be delivered to the respondents and the intervenor and filed with the Tribunal by May 10, 2011.

13In addition, the applicant alleges that she has been discriminated against on the basis of race, colour and ethnic origin, but in answer to question 8 in her Application, states only that she “has reason to believe her right to equal treatment without discrimination and freedom from harassment …. [has] been infringed because of perceived disability.”

14There are no particulars set out in her Application that would link the alleged treatment with the grounds of race, colour or ethnic origin. The applicant is directed to provide written particulars of any allegations relating to her race, colour and/or ethnic origin. These are to be delivered to the respondents and the intervenor and filed with the Tribunal by May 10, 2011.

Section 45.1/Abuse of Process

15In her Application, the applicant alleges that she was harassed in May and June 2007. The respondents assert that the applicant filed a grievance with respect to this conduct, which was settled by way of a Memorandum of Agreement.

16Although the respondents state that the Memorandum of Agreement is attached to the Response, no copy of that document is in the Tribunal’s file. The respondents are directed to deliver a copy of the Memorandum of Agreement, as well as the document that initiated the grievance, to the applicant and the intervenor and file them with the Tribunal by May 10, 2011.

17I am not seized of this matter.