Lesperance v. Caressant Care Nursing and Retirement Homes Limited, 2013 HRTO 2043

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Debra Lesperance

Applicant

-and-

Caressant Care Nursing and Retirement Homes Limited and Service Employees International Union, Local 1

Respondents

-and-

Ontario Human Rights Commission

Intervenor

INTERIM DECISION

Adjudicator: Ruth Carey

Date: December 10, 2013

Citation: 2013 HRTO 2043

Indexed as: Lesperance v. Caressant Care Nursing and Retirement Homes Limited

WRITTEN SUBMISSIONS

Debra Lesperance, Applicant

Richard Miller, Counsel

Caressant Care Nursing and Retirement Homes Limited, Respondent

Wanda Sangines, Representative

Service Employees International Union, Local 1 Canada, Respondent

Helen Nowak, Counsel

Ontario Human Rights Commission, Intervenor

Raj Dhir, Counsel

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 and contracts because of disability.

2On December 3, 2013, the parties filed with the Tribunal signed minutes of settlement (“the minutes”). The minutes settle some but not all of the issues that arise in the Application, and request that an order be issued by the Tribunal on consent. The preamble to the minutes of settlement says:

WHEREAS Debra Lesperance filed an Application with the Human Rights Tribunal of Ontario (the “Tribunal”) dated June 6, 2012 alleging an infringement of her right to equal treatment with respect to employment without discrimination because of disability by Caressant Care Nursing and Retirement Homes Limited (“Caressant Care”) and Service Employees International Union Local 1 Canada (the “Union”), contrary to the Human Rights Code, R.S.O. 1990, c.H19, as amended (the “Code”);

AND WHEREAS the Tribunal assigned File No. 2012-11812-I to the above Application;

AND WHEREAS the Ontario Human Rights Commission (the “Commission”) intervened as a party to the Application pursuant to section 37(2) of the Code on October 2, 2013;

AND WHEREAS the parties agree that Ontario Nurses Association v. Orillia Soldiers Memorial Hospital (1999), 1999 CanLII 3687 (ON CA), 42 O.R. (3d) 692 and Peterborough Hospital v. CUPE, 2013 CanLII 43787 (ON LA) together establish that it is discriminatory to deny seniority accrual to part-time employees on unpaid leave due to disability;

AND WHEREAS the parties wish to resolve the public interest issues related to the Application without a hearing.

ORDER

3Pursuant to the minutes and the parties’ request, the Tribunal makes the following order on consent pursuant to section 45.9(2) of the Code:

1. Caressant Care and the Union shall revise Article 15.17(c) of the Collective Agreement between Caressant Care and the Union from:

It is further understood that during such leave of absence not paid by the Employer, credit for seniority for purposes of promotion, demotion, transfer or lay-off shall be suspended and not accrue during the period of absence. Notwithstanding this provision, seniority shall accrue for a period of thirty-six (36) months if an employee’s absence is due to a disability resulting in WSIB benefits or in accordance with the ESA for an employee on Pregnancy/Parental leave.

to read as follows:

It is further understood that during such leave of absence not paid by the Employer, credit for seniority for purposes of promotion, demotion, transfer or lay-off shall be suspended and not accrue during the period of absence. Notwithstanding this provision, and subject to Article 13.08, seniority shall accrue for a period of thirty-six (36) months if an employee’s absence is due to a disability under the Ontario Human Rights Code including, but not limited to, a disability resulting in WSIB benefits or in accordance with the ESA for an employee on Pregnancy/Parental leave.

2. Caressant Care and the Union shall make the change set out in subparagraph 1 to the three collective agreements between Caressant Care and the Union at Cambridge Country Manor, Marmora Nursing Home and Marmora Retirement Home by February 3, 2014.

3. Caressant Care and the Union shall make all appropriate adjustments of seniority retroactively to all employees impacted by the changes to the collective agreements in subparagraphs 1 and 2 of this order by no later than September 3, 2014.

4. The Union shall not file any grievances due to the adjustments of seniority that arise as a result of the changes to the collective agreements in subparagraphs 1 and 2 of this order that predate the minutes of settlement filed.