Browne v. Toronto Transit Commission, 2013 HRTO 288

Human Rights Tribunal of Ontario

B E T W E E N:

Brigid Browne Applicant

-and-

Toronto Transit Commission Respondent

A N D B E T W E E N:

Brigid Browne Applicant

-and-

Amalgamated Transit Union Local 113 Respondent

INTERIM DECISION

Adjudicator: Maureen Doyle Date: February 21, 2013 Citation: 2013 HRTO 288 Indexed as: Browne v. Toronto Transit Commission

WRITTEN SUBMISSIONS

Brigid Browne, Applicant Self-represented

Toronto Transit Commission, Respondent Michelle Dobranowski, Counsel

Amalgamated Transit Union, Local 113, Respondent Ian J. Fellowes, Counsel

Introduction

1This is an Application filed under section 34 of Part IV 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.

2The applicant has filed two Applications, 2011-10540-I and 2012-12853-I, in which she names the Toronto Transit Commission ("TTC") as respondent. She has filed a further Application, 2012-12854-I, in which she names the Amalgamated Transit Union, Local 113 as respondent (the "union").

3This Interim Decision addresses the issue of consolidation of these three Applications and the adjournment of the hearing dates currently scheduled with respect to one of them as well as the question of deferral of these Applications.

4In the first of the above-noted applications filed against the TTC, the applicant alleges that the employer did not provide her with permanent full-time accommodated work as she had trained for a position as a dispatcher for WheelTrans, but was then required to "bid" on the position in accordance with the collective agreement and its seniority provisions. She indicates that she remained without a permanent assignment. She seeks monetary compensation by way of remedy.

5In the second of the above-noted applications filed against the TTC, the applicant alleges that the employer did not pay her wage increases she believes were due to her pursuant to the collective agreement, and that this was because she was not actively at work, but was on sick leave. Additionally, she alleges that her employment was terminated contrary to the Code. By way of remedy, she seeks monetary compensation and reinstatement of her employment.

6In her Application against the union, among other things, the applicant alleges that the union did not assist her in obtaining a permanent modified work assignment due to the fact that she was not the most senior applicant,, she alleges that she did not receive a wage increase she believes was due to her pursuant to the collective agreement, because she was not actively at work, and she also alleges that the union has failed to process her grievance regarding termination in a timely fashion. By way of remedy, she seeks financial compensation.

7In a Case Assessment Direction dated February 4, 2013, the Tribunal directed the parties to make submissions regarding the whether the applications should be consolidated, whether the hearing dates scheduled for a hearing of one of the applications naming the TTC as respondent should be adjourned, and whether these matters should be deferred pending completion of the grievance process.

8The applicant submitted that the two applications in which she has named the TTC as respondent should be consolidated, but that she believes "at this time it would be in the best interest of everyone to keep the union separate and carry on with the TTC on February 28-March 1, 2013".

9The TTC submitted that there is overlap of allegations of fact in all three applications and that they should be consolidated in order to avoid multiplicity of proceedings. It also submitted that the upcoming hearing dates for the first of the applications in which it is named should be adjourned. It notes that its response to the second of the applications in which it is named would not even be due prior to the scheduled dates.

10The Union submitted that there is significant factual overlap in each of the three applications, and that it is appropriate to consolidate the three applications. It notes that it takes this position without prejudice to any future position it may wish to take that the Tribunal lacks the jurisdiction to hear the Application or with respect to the merits of the Application. It submitted that as its response to the Application in which it is named is not due until after the hearing dates scheduled for the first of the applications naming the TTC, in the event of consolidation, those hearing dates should be adjourned. It also requests an extension of time to March 11, 2013, to file its Response. Finally, it submits that if the Tribunal does not consolidate all three applications, it takes no position with respect to the adjournment of the hearing dates scheduled in the first of the applications naming the TTC as respondent.

DECISION

11According to Rule 1.7 (d) of the Tribunal's Rules of Procedure, the Tribunal may consolidate or hear Applications together "in order to provide for the fair, just and expeditious resolution of any matter before it".

12In Persaud v. Toronto District School Board, 2008 HRTO 26, the Tribunal adopted the decision in the Canadian Human Rights Tribunal in Lattey v. Canadian Pacific Railway, 2002 CanLII 45928 (CHRT), which set out the factors that should be considered in deciding whether to consolidate or hear proceedings together:

a. The public interest in avoiding a multiplicity of proceedings, including considerations of expense, delay, the convenience of the witnesses, reducing the need for the repetition of evidence, and the risk of inconsistent results;

b. The potential prejudice to the respondents that could result from a single hearing, including the lengthening of the hearing for each respondent as issues unique to the other respondent are dealt with, and the potential for confusion that may result from the introduction of evidence that may not relate to the allegations specifically involving one respondent or the other; and

c. Whether there are common issues of fact or law.

13Upon review of the Applications, there appears to be significant overlap in the issues of fact and law before the Tribunal and there is a public interest in avoiding a multiplicity of proceedings. There is no evidence that consolidation of the Applications will result in prejudice to any person.

14The Tribunal hereby consolidates Application Numbers 2011-10540-I, 2012-12853-I, and 2012-12854-I.

15The parties advise that there are no outstanding related grievances. Accordingly, these matters are not deferred.

16The timing of the days scheduled for hearing the first of the applications naming the TTC as respondent is imminent and would not permit the orderly exchange of pleadings, documents and witness statements in the additional matters which have now been consolidated. Accordingly, the February 28 and March 1, 2013 hearing dates are adjourned.

17I am not seized.