Milne v. Toronto Police Services Board, 2013 HRTO 1531

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Lisa Milne

Applicant

-and-

Toronto Police Services Board and Chief of Police, Toronto Police Service

Respondents

INTERIM DECISION

Adjudicator: Jennifer Scott

Date: September 12, 2013

Citation: 2013 HRTO 1531

Indexed as: Milne v. Toronto Police Services Board

WRITTEN SUBMISSIONS

Lisa Milne, Applicant

Grace Permaul, Counsel

Toronto Police Services Board and Chief of Police, Toronto Police Services, Respondents

Darragh Meagher, Counsel

Introduction

1This Application, filed on April 18, 2011 under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), alleges discrimination in employment on the basis of disability. The applicant alleges that the respondents failed to accommodate her disability when they demoted her in April 2010. The Toronto Police Association (the "Association") filed a grievance for the demotion.

2On August 18, 2011, the respondents filed a request to dismiss the Application for delay.

3By Interim Decision dated November 9, 2011, 2011 HRTO 2040, the Application was deferred pending resolution of the grievance filed by the Association. As a result, the request to dismiss was also deferred.

4In May 2012, the grievance was withdrawn by the Association following unsuccessful mediation efforts. The respondent employer took the position that the grievance was withdrawn "with prejudice". The grievance was withdrawn 13 months after the Application was filed.

5On July 19, 2012, the applicant sought to re-activate her Application with the Tribunal. In her request to re-activate, the applicant stated that she decided to proceed with her Application because the Association's legal counsel provided the opinion that the grievance had little chance of success. The applicant referred to the legal opinion dated April 30, 2012 in her request to re-activate. The respondents did not respond to the re-activation request.

6By Interim Decision dated September 28, 2012, 2012 HRTO 1852, the Tribunal granted the applicant's request to re-activate the Application.

7By letter dated December 11, 2012, the Tribunal directed a preliminary hearing be held on whether the Application should be dismissed in whole or in part because of the applicant's delay in filing the Application.

8On February 28, 2013, the applicant requested leave from the Tribunal to amend the Application to add further allegations of discrimination relating to a failure to accommodate by the respondents after her demotion in April 2010.

9A preliminary hearing on the issue of delay alone was conducted by teleconference on March 13, 2013. By Interim Decision dated March 22, 2013, 2013 HRTO 485, the Tribunal dismissed the respondents' request to dismiss the Application for delay. The Tribunal ordered the respondents to respond to the applicant's request to amend the Application within 14 days of the Interim Decision.

10On April 5, 2013, the respondents advised the Tribunal that they did not object to the applicant's amendments to the Application.

11On April 5, 2013, the respondents sought a dismissal of the Application under section 45.1 of the Code or on the basis of abuse of process, and requested production of the legal opinion on the grievance.

12On June 10, 2013, the respondents filed an amended Response.

13This Interim Decision addresses the respondents' dismissal and production requests.

BACKGROUND

14The following facts are taken from the Application and the Amended Application.

15On June 5, 1990, the applicant commenced employment with the Toronto Police Services ("TPS") as an Intermediate Programmer/Analyst in the Information Technology Services Section ("Analyst").

16The applicant was absent from work for extensive periods of time from 2006 to 2009.

17On April 5, 2009, the applicant was called by her manager and was "banned" from work. In June 2009, the applicant received correspondence from the Labour Relations department of the TPS advising her to remain at home until a suitable position could be found and to undergo an independent medical assessment. The medical assessment took place in September 2009. In April 2010, the applicant was requested to report to work after being off work without pay for over one year. On April 20, 2010, the applicant returned to work in the position of Data Entry Clerk. The applicant asserts this job was a demotion from her former Analyst position, and as such, was inappropriate accommodation.

18In June 2010, the applicant was offered work on the Citizen Internet Crime reporting system. The applicant continued to work as an Analyst while being paid as a Data Entry Clerk. On July 30, 2012, the applicant was required to return to the position of Data Entry Clerk. The applicant again alleges that this position is inappropriate accommodation given that the tasks of the job are repetitive in nature and because she received inappropriate accommodation in the position. The applicant alleges further that on October 12, 2012, the TPS informed her that she could not work until a Functional Abilities Evaluation ("FAE") was conducted. The FAE was conducted on January 16, 2013. As a result of the FAE, the applicant is required to work shifts, which interfere with her physiotherapy treatment.

ANALYSIS

Production Request

19The respondents have requested production of the legal opinion from the Association's legal counsel. Counsel for the applicant has advised the Tribunal that the Association is claiming solicitor client privilege and objects to the disclosure of this opinion. Although the production request is separate from the request to dismiss, in my view, the legal opinion is relevant to the dismissal request.

20The respondents argue the Application has been appropriately dealt with in the grievance procedure because of the "with prejudice" withdrawal. Alternatively, the respondents argue the applicant's decision to forego the grievance and proceed with the Application is an abuse of process.

21There is no dispute that the applicant opted not to proceed with the grievance because of the Association's legal opinion that it had little chance of success. This was the reason given by the applicant on her re-activation request. While the opinion may be relevant to the request to dismiss, the reasons for the opinion are not. As such, the opinion letter need not be produced.

Request to Dismiss

22The respondents seek a dismissal of the Application under s. 45.1 of the Code or on the basis of abuse of process. They argue the applicant's consent to the withdrawal of the grievance was done with the understanding that the respondent employer took the position the withdrawal was "with prejudice". The withdrawal, they submit, is akin to a settlement. The respondents submit that the Application has been appropriately dealt with in another proceeding or alternatively, it would be an abuse of process to allow the Application to proceed when the applicant acquiesced to the "with prejudice" withdrawal. These arguments were not advanced by the respondents when the applicant sought to re-activate the Application in July 2012.

23Section 45.1 of the Code provides as follows:

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.

24There are two parts to the inquiry under section 45.1: (1) whether there was another "proceeding" and (2) if so, whether it "appropriately dealt with" the substance of the Application.

25There appears to be no dispute that the applicant received a legal opinion that the grievance was unlikely to be successful at arbitration. There is also no dispute that there was no formal resolution of the grievance by way of a full and final settlement or arbitration decision. The fact that the respondent employer took the position that the withdrawal was "with prejudice" does not change that fact. As such, I find that no "proceeding" has been completed which has dealt with the substance of the Application. Therefore, there is no basis to dismiss the Application under section 45.1.

26The Tribunal has the jurisdiction to consider on a preliminary basis whether or not an application ought to be dismissed based on abuse of process. Section 23(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, as amended, provides that a tribunal may make such orders or give such directions as it considers proper to prevent abuse of its processes. The circumstances that can give rise to an "abuse of process" are not finite and may include, but are not limited to, circumstances such as delay, re-litigation, settlement, as well as certain issues of procedural unfairness. In attempting to preserve and promote judicial economy, consistency and finality, the focus of the doctrine of "abuse of process" is on the integrity of the administrative justice. See Corbiere v. University of Sudbury, 2012 HRTO 309, and the cases cited therein.

27I do not accept that it would be an abuse of the Tribunal's processes to continue with this Application. While the Application contains allegations of discrimination relating to the April 2010 demotion, the subject of the grievance, it contains further allegations of discrimination in 2009 and 2012 for which no grievance has been filed. Having regard to the fact that there has been no hearing on the grievance, no settlement agreement between the parties, as well as the scope of the Application being much broader than the grievance filed, I am not persuaded that it would be an abuse of process to permit the Application to proceed.

28Accordingly, the respondents' request to dismiss is denied.

ORDER

29The respondents' request for production of the Association's legal opinion is denied. The request to dismiss the Application on the basis of delay is also denied. The Tribunal will continue to process this Application.

30This Interim Decision does not prevent the respondents from renewing their request for production of the Association's legal opinion once arguably relevant documents have been disclosed by the parties. If that request is renewed, the respondents must provide notice of their request to the Association to permit it the opportunity to make submissions on whether the legal opinion from the Association's legal counsel is protected by solicitor-client privilege.

31I am not seized.