HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Zoila Davila Applicant
-and-
McKesson Canada Respondent
INTERIM DECISION
Adjudicator: Ena Chadha Date: February 19, 2013 Citation: 2013 HRTO 270 Indexed as: Davila v. McKesson Canada
WRITTEN SUBMISSIONS
Zoila Davila, Applicant ) Self-represented McKesson Canada, Respondent ) Karen Sargeant, Counsel
1The applicant filed this Application under section 34 of the Human Rights Code, R.S.O. 1990, c.H.19, as amended (the “Code”) on November 4, 2011. The Application alleges discrimination with respect to employment on the basis of disability and age.
2On December 19, 2012, the respondent filed a Request for an Order During Proceedings (“Request”) seeking that the Tribunal dismiss the Application. The respondent argues that the Application should be dismissed because the fact that the applicant’s union decided to withdraw the applicant’s two grievances (accommodation and termination) constitutes a final determination of facts surrounding the Application. The respondent submits that it should not be forced to defend itself in multiple forums when the issues have been fully and finally disposed of through another process.
3On January 25, 2013, the applicant filed submissions opposing the respondent’s request to dismiss. The applicant argues that the unilateral withdrawal of a grievance without any settlement and without the applicant’s consent does not constitute a final disposition of the matter for the purposes of the Code.
ANALYSIS
4Although the respondent does not expressly indicate so, it appears that the respondent is arguing that the Application should be dismissed pursuant to section 45.1 of the Code because the grievance process has allegedly resulted in a final and appropriate conclusion of the subject matter of the Application. It also appears that the respondent is arguing that the continuation of the Application constitutes an abuse of process because the respondent has suffered prejudice in being compelled to respond to the applicant’s multiple claims.
5Section 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.
There 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.
6There is no dispute that the applicant’s union withdrew her two grievances based on its opinion that the grievances were unlikely to be successful at arbitration. It is also not disputed that the grievances were withdrawn on a “without prejudice or precedent basis”. Consequently, there was no formal resolution of the grievances by way of a full and final settlement or arbitration decision. As such, I find that no “proceedings” have been completed which have dealt with the substance of the Application.
7This case is similar to Paterno v. Salvation Army, Centre of Hope, 2010 HRTO 10, where the Tribunal refused a request to dismiss under section 45.1 where a grievance was unilaterally withdrawn by a union. As in Paterno, I find that when a grievance process results in an unresolved and unilaterally withdrawn grievance, that conclusion of the grievance process does not constitute a proceeding which appropriately dealt with the substance of an application for the purposes of section 45.1. Therefore, I find that this Application cannot be dismissed pursuant to section 45.1 of the Code.
8The 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 case cited therein.
9I do not accept that the continuation of this Application constitutes an abuse of process. The applicant neither consented to the withdrawal of her grievances, nor agreed to a resolution. Having regard to the fact that there has been no settlement or agreement between the parties, as well as the circumstances surrounding the unilateral withdrawal of the applicant’s grievances, I am not persuaded that it would be unfair to permit the Application to proceed.
10Accordingly, the respondent’s request to dismiss is denied.
11It appears that the parties have indicated a willingness to participate in mediation. As such, the Tribunal will schedule a mediation in this matter.
12I am not seized.
Dated at Toronto, this 19th day of February, 2013.
”signed by”
Ena Chadha Vice-chair