Dalrymple v. 412506 Ontario Ltd., 2013 HRTO 1340

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Alison Dalrymple

Applicant

-and-

412506 Ontario Ltd. dba St. Jaques Nursing Home

Respondent

-and-

Canadian Union of Public Employees and its Local 3303

Intervenor

DECISION

Adjudicator: Naomi Overend

Date: August 1, 2013

Citation: 2013 HRTO 1340

Indexed as: Dalrymple v. 412506 Ontario Ltd.

APPEARANCES

Alison Dalrymple, Applicant Self-represented

412506 Ontario Lt., Respondent Sheri Farahani, Counsel

CUPE, Local 3303, Intervenor Sue Lott, Counsel

introduction

1The applicant filed this Application on June 2, 2010 alleging discrimination in employment on the basis of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”). The applicant had been employed as a personal support worker (“PSW”) at the respondent nursing home prior to her employment being terminated in 2009.

2After the applicant sustained a workplace injury on June 30, 2009, she reported for work for two shifts before obtaining doctor’s notes excusing her from work until August 9, 2009. Her second note stated that she would be able to return to work on August 10, 2009.

3The applicant did not report for work on either August 10 or 11, 2009, and did not supply a medical note to support her absence. It seems to be common ground between the parties that the administrator at the respondent facility advised the applicant on August 12 (the applicant’s scheduled day off) that she would be required to get a medical note if she was not able to report to work the following day. The applicant was not able to see her family doctor on August 12, 2009 and apparently did not seek a note from another physician, as the administrator suggested she do.

4On August 13, 2009, the third day the applicant was absent from work, her employment was terminated pursuant to the deemed termination clause in the Collective Agreement between the Canadian Union of Public Employees and its Local 3303 (“CUPE”) and the respondent.

5CUPE filed a grievance with respect to this deemed termination. It entered into negotiations with the respondent concerning the applicant’s possible return to work in the fall of 2009. Because the applicant had suffered a workplace injury the Workplace Safety and Insurance Board (“WSIB”) was also involved. It became more actively involved in the respondent’s efforts to return the applicant to work in early 2010.

6While this was pending, the applicant was approved for what was then known as the Labour Market Re-entry program (“LMR”). Her attendance in that was conditional on the absence of suitable work at the respondent facility. The LMR option was eventually discontinued. The applicant has outstanding appeals in the WSIB process.

7In early 2012, the grievance filed on behalf of the applicant went to arbitration. In the period leading up to and during (as well as beyond) the arbitration, the applicant openly voiced her suspicions about the motivations and competency of CUPE’s local and regional staff. At no point, however, did she withdraw her grievance.

8Instead, on the second day of the arbitration, the applicant failed to attend. Counsel for CUPE advised those present that the applicant was unable to attend for medical reasons, but did not provide any medical documentation. The arbitrator, Sydney Baxter, refused to grant CUPE’s request for an adjournment. He had counsel for CUPE write to the applicant about the importance of attending the hearing or supplying proper medical information. The applicant was warned that the arbitration would proceed in her absence if she chose not to attend.

9The applicant did not attend any of the subsequent dates for the arbitration, and did not communicate with the parties or arbitrator about why she was not in attendance. The arbitration proceeded in her absence. Because the union had carriage of the file, it presented evidence and argument on the applicant’s behalf. Ultimately, the arbitrator issued a decision, dated June 6, 2012, dismissing the grievance.

10The respondent argues that this Application should be dismissed because the subject-matter of the Application has been appropriately dealt with in the arbitration process. A preliminary hearing was held on June 14, 2013 to address the respondent’s Request for an Order During Proceedings (“Request”) to dismiss the Application under s. 45.1.

11Having reviewed the submissions and the material filed with the Tribunal, I concur with the respondent’s position that the substance of this Application has been appropriately dealt with in the arbitral process. My reasons follow.

Decision and analysis

12Section 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.

13The applicant does not dispute that the arbitral process before Arbitrator Baxter was a “proceeding” for the purposes of s. 45.1. The question that has been put before me is whether that proceeding “appropriately dealt with the substance” of this Application.

14The applicant submits that the substance was not dealt with because the arbitrator did not deal with the ongoing harassment and discrimination by the respondent’s employees she alleges she experienced. A review of the applicant’s allegations, as set out in the narrative of her Application, suggest that her concerns were as follows: that the respondent discriminated against her when it terminated her employment, and that its efforts to find suitable modified work were not genuine and came only after the WSIB placed her in the LMR program. She alleges that if she were to return to work, the respondent would fire her as soon as it could.

15A careful review of the arbitrator’s decision shows that he heard evidence on and addressed exactly those issues.

16The applicant also submits that the union represented her poorly and made numerous mistakes in the presentation of evidence. This presumably goes to whether the grievance proceeding “appropriately” dealt with the material. The applicant points to a decision of the Canadian Human Rights Tribunal, Parasien v. Ottawa-Carleton Regional Transit Commission, 2002 CanLII 61850, in which the Tribunal Chair allowed the case to proceed despite the fact that an arbitrator had ruled that the termination of the complainant/grievor was not unjust. I would note, however, that the decision was based on the fact that the union was not the “privy” of the federal Commission (but was a privy of the complainant), as well as on the fact that the applicant’s human rights issues were not meaningfully canvassed in the arbitral decision.

17It is clear on the face of his reasons, that arbitrator considered the applicant’s human rights issues as well as the alleged violation of the Collective Agreement. Despite the applicant absenting herself, the Arbitrator required the respondent to meet its onus of proving that the applicant/grievor had violated the Collective Agreement. The applicant benefited from this and other procedural protections to ensure that her case, including her human rights allegations, could be heard.

18There is no compelling reason in this case to exercise my discretion to proceed with this hearing. The applicant points to what she believes is a conflict between CUPE’s interests and her interests. Specifically, she alleges that CUPE failed to responded to her inquiries quickly enough, bore her some animus or incompetently presented her case. This issue was addressed by the arbitrator:

Before leaving this decision I wish to make the following observations. First, the Grievor in my opinion, was fully and competently represented by Union Counsel throughout, who despite the problems created by the Grievor’s failure to attend and co-operate in the arbitration process, did an admirable job. Moreover, the Union Executive and the National Staff Representative were present during each of the scheduled days of hearing which can lead to no other conclusion than the Grievor was fully represented by her Union during the entire proceedings.

19In any event, it is not appropriate for this Tribunal to sit in review of the decision of Arbitrator Baxter, or to determine whether the applicant’s union failed in its duty of fair representation.

20In light of the above, it is appropriate for me to exercise my discretion under s. 45.1 to dismiss this Application. It is my view that it would be an abuse of process to allow the applicant to re-litigate her human rights allegation in the hopes of a different result.

order

21The Application is dismissed.