Karen Franceschina v. Essar Steel Algoma Inc., 2012 HRTO 1634

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Karen Franceschina Applicant

-and-

Essar Steel Algoma Inc. Respondent

-and-

United Steelworkers Local 2251 Intervenor

INTERIM DECISION

Adjudicator: Keith Brennenstuhl Date: August 27, 2012 Citation: 2012 HRTO 1634 Indexed as: Franceschina v. Essar Steel Algoma Inc.

WRITTEN SUBMISSIONS

Karen Franceschina, Applicant Bruce Best, Counsel

Essar Steel Algoma Inc., Respondent William M. LeMay, Counsel

Introduction

1This is an Application filed 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 because of disability and sex.

2By Case Assessment Direction dated July 2012, the Tribunal directed the parties to provide submissions to the Tribunal regarding the question of the timeliness of the Application and submissions regarding the question of whether deferral of the Application pending resolution of the grievance which the Intervenor union had filed on behalf of the applicant is appropriate.

Timeliness

3In her Application, filed April 17, 2012, the applicant makes reference to alleged discriminatory treatment which she states has been ongoing for most of her career as an employee of the respondent.

4The respondent submits that allegations in the Application referring to incidents prior to April 18, 2011 should be struck from the Application as untimely pursuant to section 34 of the Code.

5The applicant submits that the Application is based on two allegations, a series of incidents from October 2010 to April 2011 and a further incident in July to August 2011. In my view the incidents from October 2010 to April 2011 are a “series of incidents” within the meaning of section 34 (1)(b) of the Code and as such are not out of time. The incident in July to August, 2011 is, in my view, clearly timely as well.

6As for the incidents or allegations prior to October 2010, the applicant acknowledges that they are outside the scope of her Application. The Applicant is not asking the Tribunal to make any finding respecting liability, or order any remedy, with respect to any incident prior to October, 2010. The applicant submits that evidence respecting incidents that took place prior to October 2010 may be relevant in order to place the timely allegations in context. She cites Lawrence v. Chrysler, 2012 HRTO 1087 at para. 21:

It does not follow from this conclusion that no evidence can be lead with respect to any of the other untimely issues raised in the Application. Rather the effect of my conclusions here are the stale dated allegations in the Application are not issues for which any of the respondents can be liable. The extent to which any evidence related to these events is necessary to adjudicate the reprisal allegation is a matter better left to the Member presiding at the hearing to determine at the appropriate time

7I accept and rely on the applicant’s assertion that the only allegations for which she is asking for a finding that her Code rights have been violated are with respect to the series of incidents from October 2010 to April 2011 and the further incident in July to August 2011. The extent to which any evidence related to events prior to October 10, 2010 is necessary in order to give context to the timely allegations is a matter best left to the presiding adjudicator who hears the matter.

Deferral

8The respondent sought to defer the Application pending a grievance filed with respect to the July to August 2011 incident. The parties have advised that the grievance has been withdrawn and will not be proceeding. Since the grievance has been withdrawn and will not be proceeding to arbitration, there is no basis for a deferral of the Application.

Order

9In summary I have made the following rulings:

1. The Application shall be restricted to the timely allegations, namely the series of incidents from October 2010 to April 2011 and the further incident in July- August 2011. The extent to which any evidence related to incidents before October 10, 2011 is necessary to adjudicate the timely allegations shall be determined by the adjudicator hearing the matter.

2. The request to defer the Application to the grievance is denied for the reason that the grievance has been withdrawn and will not be proceeding.

10I am not seized.