Barkwill v. Niagara Health System, 2013 HRTO 1959

Human Rights Tribunal of Ontario

B E T W E E N:

Pamela Barkwill Applicant

-and-

Niagara Health System Respondent

INTERIM DECISION

Adjudicator: Geneviève Debané Date: November 27, 2013 Citation: 2013 HRTO 1959 Indexed as: Barkwill v. Niagara Health System

WRITTEN SUBMISSIONS

Pamela Barkwill, Applicant Self-represented

Niagara Health Systems, Respondent Michael Kyne, Counsel

Introduction

1This is an Application filed 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 disability.

2This Interim Decision addresses a number of issues raised in the pleadings filed by the parties.

Dismissal of the Application

3In the Response the respondent raises the issue that the Application should be dismissed pursuant to section 45.1 of the Code because another proceeding has appropriately dealt with the substance of the Application. The respondent takes the position that the applicant’s bargaining agent the Service Employees International Union, Local 1 (the “Union”) filed a grievance on behalf of the applicant which was ultimately withdrawn by the Union.

4In a letter dated October 7, 2013, the Union advised the Tribunal that it had withdrawn the applicant’s grievance because it was not satisfied with the information provided by the applicant during that process.

5The respondent’s Request to dismiss the Application is denied. The Tribunal has repeatedly found that the unilateral withdrawal of a grievance does not satisfy the requirements of section 45.1 of the Code. See: Shannon v. Renfrew (County), 2010 HRTO 930, and Dupuis v. Religious Hospitalliers of St. Joseph of Cornwall, 2010 HRTO 1079.

Request to defer

6In the Response the respondent raises the issue that the Application should be deferred because another proceeding is currently dealing with matters raised in the Application. The Response refers to a Decision from the WSIB dated October 15, 2012, and the respondent states “status unclear”. The narrative of the Application fails to address the issue of deferral.

7There is simply no explanation provided by the respondent to explain why the Tribunal should defer the Application and how the issues raised in the Application are similar to the issues raised in the WSIB proceeding. In these circumstances, the Tribunal declines to defer the Application at this time.

The Union’s request for clarification

8In a letter dated November 20, 2013, the Union seeks clarification of the applicant’s Form 3, Reply. At the top of Form 3, where the applicant has to fill in the name of all of the respondents, she has included the Union and some of its members. The applicant cannot add parties to the Application by incorrectly filling out this portion of the Form 3. Therefore, the Union need not respond to the Form 3.

9If the applicant seeks to make allegations that the Union has breached her Code rights, then she must file an Application against the Union. Alternatively, the applicant could make a Request for an Order during Proceedings seeking to add the Union as a party to this Application.

10I am not seized of this matter.