Mewsha Samuels v. Kingdom Hotels Limited o/a Four Seasons Hotel Toronto, 2012 HRTO 680

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Mewsha Samuels

Applicant

-and-

Kingdom Hotels Limited o/a Four Seasons Hotel Toronto

and Mary Sardella

Respondents

-and-

United Food and Commerical Workers International Union, Local 333

Intervenor

INTERIM DECISION

Adjudicator: Naomi Overend

Date: April 3, 2012

Citation: 2012 HRTO 680

Indexed as: Samuels v. Kingdom Hotels Ltd.

APPEARANCES

Mewsha Samuels, Applicant ) Grace Permaul, Counsel

Kingdom Hotels Ltd. and ) Jeremy Hann, Counsel

Mary Sardella, Respondents )

United Food and Commercial Workers ) Laurie Kent, Counsel

International Union, Intervenor )

1The applicant filed an Application on May 20, 2009, alleging discrimination in employment contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The applicant is also a member of the United Food and Commercial Workers International Union, Local 333 (“Local 333”). Prior to filing her Application with the Tribunal, the applicant filed a number of grievances, which were referred to arbitration to be heard together in 2008.

3For reasons that are discussed in greater detail below, Local 333 withdrew the grievances in September 2009. It informed the applicant of this decision, but did not notify the respondent.

4At the time the applicant filed her Application, the arbitration was ongoing. By the time the respondents filed their Response on December 23, 2009, however, Local 333 had withdrawn the grievances. Because the respondents were not aware of Local 333’s decision to withdraw, they requested the Tribunal to defer to what they believed was the ongoing grievance process.

5The Tribunal deferred the Application to the grievance process by Interim Decision on March 4, 2010, 2010 HTRO 493. In June 2011, the applicant brought a Request for Order asking to reactivate her deferred Application.

6The respondents oppose reactivation. In Response to the reactivation request, the respondents indicated that if the Tribunal reactivated the Application, they wanted the Tribunal to consider their outstanding request to have a portion of the Application dismissed on the basis of delay. In addition, they brought a Request for an Order During Proceedings to have the entire Application dismissed under s. 45.1.

7I issued a Case Assessment Direction advising the parties that the Tribunal would convene a half-day preliminary hearing by teleconference to address: (1) whether the Application should be reactivated; (2) whether to dismiss a portion of the Application for delay; (3) whether to dismiss the Application under s. 45.1 of the Code or as an abuse of its process.

8In advance of the preliminary hearing, the parties filed submissions and case law. In addition, Local 333 filed submissions and supporting documents to refute certain factual allegations being made by the applicant. At the outset of the preliminary hearing, after hearing submissions on the matter, I granted Local 333 intervenor status. I set out the parameters for its intervention before me on the preliminary issues, but left it to the assigned adjudicator to determine the intervenor’s role should this matter proceed to a hearing.

BACKGROUND FACTS

9The applicant alleges she experienced discrimination and harassment in employment on the basis of creed, disability, race, sex and reprisal. The 15-page narrative attached to her Application makes numerous general and specific allegations of acts of discrimination and/or harassment between the fall of 2003 and April 2007. There is a year-long gap in her chronology, and then three allegations of conduct occurring on April 20, 27 and 29, 2008.

10In October 2008, the applicant received a letter dated October 17, 2008 from the respondent indicating that it would be restructuring, and that her position would be changed from a full-time to a part-time position. In 2008 (the date of this is not clear), the applicant went off work for medical reasons, and has not returned since. She remains an employee of the respondent.

11As described above, the applicant is member of Local 333. Between April 2007 and November 2008, she filed 17 grievances in which she also alleged discrimination resulting in a poisoned work environment. These grievances were combined and referred to an arbitration hearing, which was to have commenced on December 12, 2008. Previously, the applicant and Local 333 had attended two mediation dates with this arbitrator, but were unable to settle any of the matters.

12The applicant’s representative advised counsel for Local 333, by letter dated December 9, 2008, that her client was unable to attend the arbitration hearing for health reasons and because there had been a breakdown in the relationship between the applicant and Local 333’s counsel. In response, counsel for Local 333 wrote explaining her position that there was no breakdown in the relationship, and asking the applicant’s counsel to let her know when she anticipated that her client would be able to attend a hearing.

13Counsel for Local 333 wrote follow-up letters on December 11, 2008 and February 10, 2009, asking applicant’s counsel to inform her when the applicant might be able to attend a hearing. Applicant’s counsel wrote a response on February 18, 2009, saying that her client was in the process of being evaluated and that she was not, therefore, in a position to schedule a hearing.

14In turn, counsel for Local 333 wrote a follow-up letter on March 24, 2009, asking to be informed when the applicant would be able to attend a hearing. Neither the applicant nor her counsel responded to this letter. Counsel for Local 333 wrote two further letters to the applicant’s counsel asking for information about the applicant’s ability to attend an arbitration hearing and warning that if she did not receive a response, Local 333 would withdraw the applicant’s grievance.

15The second letter specified a deadline of September 11, 2009. Counsel for the applicant states that she sent a letter, dated September 1, 2009, in which she advised that her client continued to be ill and unable to attend a hearing. It is accepted that this letter was not received. Counsel for Local 333 submitted that there was reason to believe this letter was not sent, but I am unable to make such an assessment at this stage.

16In any event, having not heard from the applicant, Local 333 made the decision to withdraw the “grievance,” and notified the applicant – but not the respondents – of this fact by letter dated September 24, 2009.

17After it received a copy of the Application from the Tribunal (as an affected person), Local 333 wrote to the Tribunal on December 16, 2009, to advise that it had withdrawn the applicant’s grievances in September 2009, for the reasons described above. Local 333’s letter was not copied to the parties, and contrary to the Tribunal’s usual practice, the Tribunal did not forward the letter to the parties.

18A week later, the respondents filed their Response, asking the Tribunal to defer the Application to a grievance process which, unbeknownst to them, was no longer being pursued. By letter dated January 29, 2010, the Tribunal specifically directed the applicant to address the respondent’s request to defer the Application.

19On February 24, 2010, the applicant’s counsel wrote to the Tribunal the following:

Please be advised that we object to the requested deferment in this matter. While the factual basis for the previously filed grievances by Ms. Samuels continues, the actual grievances were previously dismissed.

Consequently, there is no other process in place at this time to address the issues raised in the human rights Application. Accordingly, Ms. Samuel’s Application should proceed at the Tribunal immediately.

20This letter was not copied to the other parties, contrary to the Tribunal’s Rules. It would appear that the Tribunal did not advise the applicant’s counsel of this oversight or return the letter to her. Moreover, the letter was not placed in the Tribunal’s hard-copy file and so would not have been seen by the Vice-chair assigned to make the deferral decision.

21The Tribunal deferred the Application to the grievance process on March 4, 2010. In oral submissions before me, counsel for the applicant stated that she did not ask for reconsideration because she assumed that that the union must have reconsidered its earlier decision not to withdraw the grievances.

22Neither she nor her client attempted to verify this assumption upon receipt of the Interim Decision. However, on January 7, 2011, the applicant wrote directly to the secretary/treasurer of Local 333 to ask “the status or what steps are being taken regarding the status for the outstanding unresolved arbitrational grievance regarding unpaid wages and benefits.” It is not clear to what grievance or grievances this letter refers. She did not receive a reply to this letter.

23The Registrar issued a letter on May 5, 2011, asking the applicant to update the Tribunal on whether the grievance process was still ongoing. The applicant wrote a follow-up letter to Local 333 on June 10, 2011, asking for the status of the “outstanding grievance which still have not been resolved by the organization Local #333.” She concludes this letter by saying, “I am considering that your organization United Food & Commercial Workers Union Local #333 has abandon [sic] all grievances filed” and that she would be proceeding with her Application to the Tribunal.

24On the same day, the applicant’s counsel wrote to the Tribunal asking to reactivate her deferred Application. She states:

The Application was filed in July 2009 and no action has been taken with respect to the alleged grievances as presented by the Respondents, in two years. It the Applicant’s position that her grievances were previously withdrawn by the Union or more recently abandoned by the Union.

25The respondents filed a Response to the Request to reactivate, opposing the request on the basis that it was made after the time limit for reactivation expired.

Reactivation

26The Tribunal based its Interim Decision to defer on the mistaken information that the grievances were still outstanding and the grievance process had not concluded. This mistaken belief was held by the respondents and communicated to the Tribunal in their request to defer in December 2009, three months after the union had withdrawn the grievances.

27Both the applicant and Local 333 attempted to correct this mistake, but they did not copy the other parties with their submissions, and they were not reminded by the Tribunal to do so. Their submissions were not before the Vice-chair making the Interim Decision to defer.

28The respondents remained unaware that the grievances had previously been withdrawn in the months that followed the decision to defer. It was only after the applicant made the Request to reactivate in June 2011 that the respondents and the Tribunal understood that the deferral was made in error.

29The relevant provisions in the Tribunal’s Rules of Procedure state:

14.3 Where a party wishes the Tribunal to proceed with an Application which has been deferred the request must be made in accordance with Rule 19.

14.4 Where an Application was deferred pending the outcome of another legal proceeding, a request to proceed under Rule 14.3 must be filed no later than 60 days after the conclusion of the other proceeding, must set out the date the other legal proceeding concluded and include a copy of the decision or order in the other proceeding, if any.

14.5 The Tribunal may, on its own motion, require a deferred Application to proceed in appropriate circumstances.

30The unusual circumstances in this case mean that at the time the decision to defer was made, the other proceeding had been concluded for more than five months and, accordingly, the 60-day time limit for reactivation had already passed. The respondents argue that the applicant should not be held to the 60-day standard with respect to the conclusion of the proceeding, but from the issuance of the Tribunal’s decision to defer. Using the respondent’s proposed method of counting time, the applicant’s request to reactivate is still approximately 13 months late.

31I do not agree with the respondents’ assertion that, in the absence of a time limit which clearly applies to this situation, the applicant should be held to a strict numerical standard. Having said this, however, a party cannot indefinitely delay correcting a situation that it knows or has reason to believe is based on a mistake. While it is unfortunate that the series of mistakes detailed above were made at the time of the time of the Interim Decision, I am troubled by the applicant’s delay in correcting the situation after she received the decision to defer.

32The explanation provided by counsel for the applicant – that she assumed that the union must have changed its mind about withdrawing the grievances – is troubling because an assumption of this magnitude should be confirmed rather than simply accepted. Not only did the applicant counsel’s fail to make any enquiries of counsel for Local 333, but her client waited ten months after the Interim Decision to follow up with her union (and then did nothing when Local 333 did not respond to her letter).

33Moreover, as set out above, the Vice-chair states at paragraph 4 of the Interim Decision that the applicant did not file a response to the Tribunal’s January 29, 2010 letter (asking for submissions on the respondents’ deferral request). Even if, as counsel for the applicant now asserts, she and her client assumed that Local 333 had changed its mind about withdrawing the grievances, this paragraph should have alerted them to the fact that her February 24, 2010 submissions were not before the Tribunal.

34Despite these concerns, I do not think that collectively they amount to an abuse of the Tribunal’s processes. There is no rule or statute that can be fairly applied in this circumstance to prevent reactivation. Accordingly, the request to reactivate is granted.

DELAY

35The respondents ask in their Response (Form 2) that the Tribunal dismiss those allegations in the Application that pre-date May 2008 (i.e., one year prior to the Application being filed). The respondents argue that the allegations are out of time, the delay was not incurred in good faith and the respondents are prejudiced in trying to respond to some of the older allegations.

36Section 34.1 of the Code states:

34 (1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series.

(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

37As stated by the Tribunal in Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241, “the Code requires an individual to act with all due diligence, and file their application within one year, when they may seek to pursue a human rights claim.” When filing outside this one-year time limit, it is incumbent upon the applicant to provide the Tribunal with an explanation as to why she did not pursue her rights under the Code in a timely manner.

38The applicant’s counsel acknowledges that the allegations pre-dating May 2008 (i.e., the bulk of the allegations) are not part of a “series of incidents” that relate to an event occurring after that date and are, therefore, out of time. She did not defend their inclusion on the basis of good faith, but said they were included to provide context to the one timely allegation, which took place in October 2008, when the applicant was advised by the respondents that her job was being reduced from a full-time to a part-time position.

39It is the applicant’s contention that she was selected for this reduction in hours on the basis of her race, disability, creed and sex, or in reprisal for having previously asserted her rights. I would note, parenthetically, that the narrative is structured in such a fashion as to suggest that the applicant is making independent allegations of harassment on the basis of the enumerated grounds, but given the applicant’s concession that they are out of time, it is not necessary to comment further on them.

40Having accepted the applicant’s concession that these particulars do not constitute independent allegations of discrimination, the only other question is whether they, in fact, provide “context” for the one remaining allegation that the reduction in hours was discriminatory. This question is, however, more appropriately dealt with by the adjudicator assigned to hear this matter.

41In finding that this Application should not be dismissed for delay, I am accepting and relying on the applicant’s assertion that the only allegation for which she is asking for a finding that her Code rights have been violated, and for which she is seeking a remedy, is the decision to reduce her hours communicated in the respondents’ October 17, 2008 letter.

SECTION 45.1 / ABUSE OF PROCESS

42In the Response to the Request for Order (Form 11), the respondents argue that the Application should be dismissed on the basis of s. 45.1 of the Code:

45.1 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.

43The respondents argue:

… Samuels through her own actions (or inaction), caused the Union to withdraw her multiple grievances, after it had given Samuels a more than reasonable opportunity to proceed. Samuels should be bound by her own actions, which caused the Union to withdraw those grievances.

44On their face, none of the 17 grievances that the parties agree were to have been heard by the arbitrator appear to relate to the reduction from full-time to part-time hours communicated on or around October 17, 2008. Sixteen of the 17 grievances pre-date October 2008. The remaining grievance, filed on November 2, 2008, only seems to address an allegation of workplace harassment that the applicant/grievor states took place on November 1, 2008, concerning the appropriate procedure for delivery of “purchase amenities.”

45Had the applicant continued to rely on the earlier allegations in her Application, some of which appear to be the subject of grievances, it would be necessary for me to determine the respondents’ argument. However, given the applicant’s position that her sole allegation of discrimination is an incident for which there is no corresponding grievance, the necessary pre-conditions in s. 45.1 of “another proceeding” which has appropriately dealt with “the substance of the allegations” are not present.

46Accordingly, the respondents’ Request to dismiss on the basis of s. 45.1 is denied.

ORDER

47In summary, I have made the following rulings:

1. This Application is reactivated;

2. The United Food and Commercial Workers International Union, Local 333 is granted intervenor status;

3. The applicant shall be restricted to proving a violation of, and seeking damages for, the allegation set out in paras. 46-49 of the narrative attached to her Application, concerning the proposed reduction from full-time to part-time hours;

4. The respondents’ request to dismiss on the basis of delay is denied; and

5. The respondents’ Request to dismiss the Application on the basis of s.45.1 of the Code is denied.

48I am not seized of this matter.