HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Stannie Muir Applicant
-and-
Humber River Regional Hospital and Ester Correa Respondents
INTERIM decision
Adjudicator: Ena Chadha
Indexed as: Muir v. Humber River Regional Hospital
WRITTEN SUBMISSIONS
Stannie Muir, Applicant ) John Westdal, Counsel
Humber River Regional Hospital and Ester Correa, Respondents ) Daryn M. Jefferies, Counsel
1The applicant filed an Application on July 21, 2011 under section 34 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. The applicant alleges that the respondents discriminatorily denied him sick leave benefits and declined to issue his Record of Employment.
2By way of Interim Decision 2011 HRTO 1943, the Tribunal deferred the Application pending the conclusion of two outstanding grievances.
3On December 12, 2011, the applicant filed a request to reactivate his Application. The applicant submitted that the Tribunal should reactivate the Application because the previous union that filed his grievance, namely Service International Employees Union Local 1 Canada ("SIEU"), was replaced by another union, namely Ontario Workers' Union ("OWU"), to represent the bargaining unit and, therefore, his grievances are not being processed. The applicant submits that a human resources representative of the respondent organization has confirmed to him that the grievance process is no longer available to him.
4The respondents did not file submissions in response to the request to reactivate.
5On February 7, 2012, the Tribunal issued a Case Assessment Direction directing the parties to file submissions as to the status of the applicant's grievances and whether or not there is a grievance process currently in place for addressing grievances filed by the previous union.
PARTIES' SUBMISSIONS
6The respondents allege that the Application should not be reactivated because the grievances remain outstanding and that the facts and issues raised in the grievances are the same as those raised by the Application. The respondents indicate that the SIEU maintains carriage of the grievances and could voluntarily assign carriage of the grievances to OWU.
7The applicant submits that the Tribunal should reactivate the Application because, notwithstanding the fact that SIEU has been replaced by OWU to represent the bargaining unit, the SIEU has not agreed to provide OWU with carriage of the grievances that were outstanding. The applicant indicates that, despite his inquiries, he has not received any information from SIEU regarding the status of his grievances and believes that his grievances have been abandoned because the SIEU deemed him "not to be a member in good standing".
DECISION
8While the applicant's grievances may be technically outstanding, I am not persuaded that the applicant's grievances remain active. Although the respondent states that the SIEU retains carriage of the grievances, it does not appear that the SIEU is actively advancing the grievances. There is no evidence before me to suggest that the grievance process is underway and that the grievances will be addressed in the foreseeable future. Further, based on the applicant's submissions, it appears that SIEU has provided no information or assurances about the future handling of the grievances.
9I find that the circumstances of this case are unique in that the applicant believes his lack of status with the SIEU is part of the reason why his grievances have not progressed. The applicant provided documentary evidence indicating that SIEU has determined him to be a member 'not in good standing'. I accept that the applicant's lack of status may possibly raise a concern about whether or not his grievances can, or will, be advanced or transferred by the SIEU.
10Although the Tribunal's usual practice is to reactive applications only upon the completion of the other legal process upon which the application was originally deferred, recently, in Melville v. Toronto (City), 2012 HRTO 22 at para. 13, Associate Chair David A. Wright noted that an applicant may pursue reactivation on the basis that a grievance process has been unreasonably slow. In the instant case, the applicant's grievances were filed in April 2011 and the SIEU was displaced in October 2011. It appears that the grievances have not been processed since that time and there is no indication that they will progress.
11In sum, the parties' submissions indicate that, to date, SIEU has neither opted to pursue the grievances nor reassign carriage of the grievances. In these circumstances, I find that there is real doubt that the grievances will progress and, as such, determine that reactivation is appropriate.
ORDER
12The Tribunal orders the Application be reactivated.
13Within 35 days of the date of this Interim Decision, the respondents are required to file a Response (Form 2) with the Tribunal. The respondents are required to indicate whether or not they are amenable to mediation. The applicant is required to file a Reply in accordance with the Tribunal's Rules of Procedure and in the Reply indicate whether he is willing to participate in mediation.
14I am not seized of this matter.
Dated at Toronto, this 16th day of March, 2012.
"signed by"_____________
Ena Chadha
Vice-chair