Poste v. Metro Ontario Inc., 2012 HRTO 2128

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Sandra Poste

Applicant

-and-

Metro Ontario Inc.

Respondent

INTERIM decision

Adjudicator: Sheri D. Price

Date: November 9, 2012

Citation: 2012 HRTO 2128

Indexed as: Poste v. Metro Ontario Inc.

APPEARANCES

Sandra Poste, Applicant Self-represented

Metro Ontario Inc., Respondent No one appearing

National Automobile, Aerospace, Transportation and General Workers’ Union of Canada (“CAW-Canada”), Affected Party Doug Orr, Representative

INTRODUCTION

1This is an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”), alleging discrimination with respect to employment because of sex and family status.

2In particular, the applicant alleges that the respondent discriminated against her when it responded to the applicant’s pregnancy-related need not to do heavy lifting by transferring her from the day shift to the night shift. The applicant, who had a five-year-old daughter at the time, submits that this was not an appropriate accommodation because of her family status and/or sex. Among other things, the applicant maintains that working on the night shift did not allow her to meet her parental responsibilities to her daughter, a problem exacerbated by the fact that the applicant’s husband was also employed by the respondent on the night shift.

3In an earlier Interim Decision in this matter, 2012 HRTO 93, the Tribunal deferred consideration of the Application, pending the conclusion of a grievance process in respect of a grievance filed by the applicant that related to the same facts and/or issues as the Application.

4On January 30, 2012, the applicant sought reactivation of her Application on the basis that there was no longer any ongoing grievance process in respect of her grievance. The Tribunal reactivated the Application in an Interim Decision dated July 24, 2012: 2012 HRTO 1442.

5In its July 2012 decision reactivating the Application, the Tribunal directed that a teleconference hearing be convened to determine whether the Application ought to be dismissed pursuant to s.45.1 of the Code on the basis that another proceeding had appropriately dealt with the substance of the Application. The Tribunal also directed the parties to be prepared to make submissions during the teleconference with respect to whether the Application ought to be dismissed as an abuse of process.

6On August 2, 2012, the Tribunal sent the parties a Notice of Confirmation of Hearing advising them that the above-noted teleconference hearing would take place on November 6, 2012.

7The Notice of Confirmation of Hearing that was sent to the parties set out the consequences of failing to attend the teleconference hearing as follows:

CONSEQUENCES OF FAILING TO ATTEND THE HEARING

If you fail to attend the hearing after receiving proper notice the HRTO may:

• proceed in your absence;

• determine you are not entitled to further notice of the proceedings;

• determine you are not entitled to present evidence or make submissions to the HRTO;

• decide the Application based solely on the materials before the HRTO;

• dismiss the Application as abandoned if the applicant fails to attend, and;

• take any other action the HRTO considers appropriate.

8On November 6, 2012, I convened the teleconference hearing at the set time. The applicant attended the teleconference. A representative of the applicant’s trade union, CAW-Canada, also attended the teleconference. However, the union did not seek to make submissions on the issue under s.45.1 of the Code or the abuse of process issue. The respondent did not attend the teleconference.

9I am satisfied that the respondent had timely and proper notice of the teleconference hearing. In the absence of the respondent or any reasonable explanation for its failure to attend, I proceeded with the November 6, 2012 teleconference hearing in the respondent’s absence.

WHETHER ANOTHER PROCEEDING APPROPRIATELY DEALT WITH THE SUBSTANCE OF THE APPLICATION

10Section 45.1 of the Code states:

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.

11There is no dispute that, in September 2011, the applicant filed a grievance under the collective agreement between her trade union and the respondent employer that related to the same facts and issues as the Application before the Tribunal.

12The applicant’s grievance was never referred to arbitration by the trade union. On the contrary, the applicant submits that the union unilaterally decided not to take any further action on and/or to withdraw her grievance after the applicant’s transfer to the day shift in late September 2011 (not as an accommodation of her family-status-related needs, but as a form of medical accommodation). The applicant submits that she never agreed to the withdrawal of her grievance by the union. The union confirms that this is what transpired with the applicant’s grievance.

13Based on the above, it is clear to me that the substance of the applicant’s human rights Application has not been appropriately dealt with by the grievance procedure under the collective agreement between the respondent and the applicant’s trade union.

14The Tribunal has dismissed Applications under s.45.1 of the Code where a grievance relating to the same facts and issues as those raised in the Application has been adjudicated by a labour arbitrator with jurisdiction to interpret and apply the Code: Thomas v. Revera Retirement Living LP, 2012 HRTO 997.

15The Tribunal has also dismissed Applications under s.45.1 of the Code where the applicant has agreed to a settlement of a grievance relating to the same facts and issues as those raised in the Application: Van Barneveld v. I.O.O.F. Seniors Homes, 2009 HRTO 448; Pannu v. Peel District School Board, 2010 HRTO 1233; Nolan v. Vale Inco, 2010 HRTO 1758; Nicholson v. Bombardier Transportation Canada Inc., 2012 HRTO 2062 at para. 48-62; Baldwin v. Thames Valley District School Board, 2010 HRTO 1784; Lumley v. Trillium Lakelands District School Board, 2010 HRTO 1117 at para. 17-24; Lemieux v. Guelph General Hospital, 2010 HRTO 1267 at para. 15-22.

16Neither of these things occurred in this case.

17In this case, the applicant’s grievance was withdrawn by the union, without the applicant’s express agreement. Section 45.1 of the Code is not triggered in such circumstances: Dupuis v. Religious Hospitallers of St. Joseph of Cornwall, 2010 HRTO 1079 at para. 22-23; Jean v. Résidence St. Louis, 2011 HRTO 1800 at para. 18-19; Daoust v. Sudbury Regional Hospital, 2012 HRTO 1868 at para. 9-10; Shannon v. Renfrew (County), 2010 HRTO 930; Paterno v. Salvation Army, Centre of Hope, 2010 HRTO 10.

18Moreover, since the applicant never settled her human rights issues with the respondent or otherwise agreed not to pursue a human rights Application against the respondent, it would not be an abuse of the Tribunal’s process to permit the Application to proceed.

19For the above reasons, I find that no other proceeding has appropriately dealt with the substance of the Application. Nor would it constitute an abuse of process for the Application to proceed. The Application will therefore continue in the Tribunal’s process.

20I am not seized.