Wright v. Caressant Care Nursing and Retirement Homes Ltd., 2012 HRTO 1107

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Barbara Wright Applicant

-and-

Caressant Care Nursing and Retirement Homes Ltd. Respondent

-and-

United Food and Commercial Workers Canada, Local 175 Intervenor

INTERIM DECISION

Adjudicator: Ena Chadha Date: June 6, 2012 Citation: 2012 HRTO 1107 Indexed as: Wright v. Caressant Care Nursing and Retirement Homes Ltd.

WRITTEN SUBMISSIONS

Barbara Wright, Applicant Patrick James, Counsel

Caressant Care Nursing and Retirement Homes Ltd, Respondent Carolyn Johnston, Counsel

United Food and Commercial Workers Canada, Local 175, Intervenor Evan Schiller, Counsel

1This Application was filed on March 2, 2012 under section 34 of Part IV of the 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.

2The applicant alleges that she was subjected to discriminatory discipline and harassment following her return to work from a medical leave of absence. The applicant’s narrative notes that she has filed several grievances as a result of the alleged unfair warnings and suspension but none of the grievances have been resolved. In response to question 14 of Form 1 of the Application, the applicant noted that a grievance is in progress with respect to the facts alleged in the Application. The applicant provided copies of four grievances filed from August to December 2011 with respect to unjust discipline.

3On May 4, 2012, the respondent filed a Response denying the allegations of discrimination and harassment. The respondent alleges that any decisions to counsel or discipline the applicant were unrelated to the applicant’s disability and arose out of work performance issues. The respondent requests that the Tribunal dismiss the Application because, pursuant to section 45.1 of the Code, another proceeding has appropriately dealt with the substance of the Application. In addition, the respondent requests that the Application be deferred pending the conclusion of grievance proceedings. The respondent also requests that any information relating to the residents of the respondent facility be kept confidential and for anonymization of the residents’ identities.

4On May 18, the applicant filed a Reply and submissions opposing the request to dismiss or defer. The applicant submits the Application should proceed because there is no decision with dealing with the substance of the Application. The applicant acknowledges that there are a number of outstanding grievances; however, submits that there is no risk of inconsistent findings because the grievances do not deal with the central claims of the Application and there has been lengthy delay in the progress of the grievances.

5On May 25, 2012, the applicant’s union, United Food and Commercial Workers Canada, Local 175 (“union”), filed a request to intervene. The union provided no information regarding the grievances and filed no submissions with respect to the issue of deferral. The union simply indicates that the applicant is a member and that it has an interest in issues with respect to the conduct of the union or its representatives and the interpretation of the collective agreement. The union states that it is not taking a position on the merits of the Application or the Response.

Request to Intervene

6As the Tribunal stated in Boyce v. Toronto Community Housing Corporation, 2009 HRTO 131:

A union or association nearly always has an interest in a human rights application brought by an employee in a bargaining unit it represents when the application alleges discrimination in employment. Absent exceptional circumstances, the applicant’s bargaining agent will be granted intervention status in Tribunal proceedings where it requests it.

7Based on the information provided by the parties and the submissions of the union, I am satisfied that the union has an interest in the outcome of the Application. As such, and in 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 on the terms set out in its Form 5 is granted.

Dismiss

8Section 45.1 of the Code provides as follows:

The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.

9There are two parts to the inquiry under s. 45.1: (1) whether there was another “proceeding” and (2) if so, whether it “appropriately dealt with” the substance of the Application.

10Based on the parties’ submissions, there does not appear to be an arbitration decision, settlement or other resolution relating to all or part of the issues raised in the Application. As such, no proceedings have been completed having dealt with the substance of the applicant’s allegations. Consequently, at this time, the respondent’s request for dismissal under section 45.1 is denied.

Deferral

11The Tribunal may defer consideration of an application, on such terms as it may determine, on its own initiative or at the request of any party (Rule 14.1). Deferral of an application ensures that proceedings dealing with the same issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law.

12I note that two of the grievances in this case were commenced almost ten months ago, following which two other grievances were filed. Neither the respondent nor the union have provided any specific information as to the status of these matters. As such, it is unclear if, and when, these matters will proceed. In the circumstances, the Tribunal requires further clarification of the status of the grievances.

13Within 14 days of the date of this Interim Decision, the parties and the union are required to write to the Tribunal, copied to each other, providing information as to the specific status of each of the grievances.

14I am not seized of this matter.