Valmassoi v. Canadian Electrocoating Ltd., 2013 HRTO 401

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Carolyn Valmassoi

Applicant

-and-

Canadian Electrocoating Ltd. and Teamsters Local 879

Respondents

INTERIM DECISION

Adjudicator: Jo-Anne Pickel

Date: March 8, 2013

Citation: 2013 HRTO 401

Indexed as: Valmassoi v. Canadian Electrocoating Ltd.

APPEARANCES

Carolyn Valmassoi, Applicant

Self-represented

Canadian Electrocoating Ltd., Respondent

Jeanine Watt, Counsel

Teamsters Local 879, Respondent

Michael Klug, Counsel

Introduction

1The applicant alleges that Canadian Electrocoating Ltd. (“company”) and Teamsters Local 879 (“union”) discriminated against her because of disability, marital status and family status when the company terminated her employment for innocent absenteeism. The applicant also includes in her Application a number of incidents that occurred several years ago that she alleges form part of a pattern of harassment by the company because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2By Case Assessment Direction dated October 3, 2012, the Tribunal, on its own initiative, directed that a summary hearing be held to determine whether the Application should be dismissed, in whole or in part, on the basis that there is no reasonable prospect that it will succeed. The respondents were advised that they did not need to file Responses to the Application unless directed to do so by the Tribunal.

3The Tribunal directed the parties to address three issues in the summary hearing: (1) whether some or all of the allegations in the Application should be dismissed as untimely, (2) whether another proceeding has appropriately dealt with any of the timely human rights claims in the Application and (3) whether any timely human rights claims that have not been appropriately dealt with by another proceeding stand a reasonable prospect of success.

4For the reasons that follow, I dismiss all allegations against the company and the union in the Application except for the allegation that the company discriminated on the basis of disability, family status and/or marital status when it terminated the applicant’s employment due to innocent absenteeism.

factual background

5The applicant filed her Application with the Tribunal on July 10, 2012.

6The company terminated her employment in July 2011 for innocent absenteeism. In her Application, the applicant referred to incidents that occurred in 2009 and 2010. These incidents related to discipline she was given for alleged insubordination and also to alleged harassment by one of her supervisors when he provided instructions to her in relation to the wearing of arm guards and the performance of her work.

7The applicant also included with her Application copies of several grievances she had filed with her union in 2010. The applicant filed two grievances in February 2010 alleging that the company had harassed her because she was required to be absent from work due to illness. She filed a third grievance in February 2010, this one challenging certain deductions the company had made from her pay for arriving to work late. She filed a grievance in July 2010 challenging a warning letter she had received from the company in relation to her attendance. Finally, it appears that she filed another grievance, the date of which is unclear, in which she alleged that the company had harassed her due to her absences from work. The union did not take action on any of these grievances. However, the union had also not formally withdrawn the grievances by the time of the applicant’s termination in July 2011.

8During the 2010 and 2011 calendar years, the applicant was absent from work on several occasions allegedly due to illness and/or family-related reasons. According to the applicant, she provided doctors’ notes for all absences due to illness. The applicant also claimed many absences as leaves under the Employment Standards Act 2000, S.O. c. 41, as amended (“ESA”). The company wrote to her on several occasions during 2010 and 2011 to warn her that it considered her attendance record unacceptable.

9By letter dated May 31, 2011, the company advised that continued poor attendance would put the applicant at risk of termination due to innocent absenteeism. The applicant was then absent from work on June 30th and July 1, 2011. By letter dated July 18, 2011, the company advised the applicant that her employment was being terminated due to innocent absenteeism.

10On July 19, 2011, the applicant filed a grievance challenging her termination and seeking reinstatement of her employment.

11The union sought its legal counsel’s opinion on whether the applicant’s grievance was likely to succeed at arbitration. Ultimately, the union determined that it was unlikely that the union would be able to achieve the applicant’s reinstatement if it was successful at arbitration. The union informed the applicant that it did intend to require the company to pay the applicant the severance pay and termination pay to which she was entitled under the ESA.

12The union and the company entered into Minutes of Settlement dated June 26, 2012. The Minutes of Settlement indicate that, after due investigation, the union had decided not to proceed with the applicant’s termination grievance. The Minutes indicate that the parties wished to resolve all outstanding matters relating to the applicant’s employment and termination of employment including her entitlements under the ESA. The company and the union agreed that the company would pay the applicant the termination pay and severance pay to which she was entitled under the ESA. The applicant did not sign the Minutes of Settlement. According to the applicant, she was unaware that the union and the company were meeting to enter into the Minutes of Settlement. She did not know that her grievance was settled until she received the Minutes of Settlement from the union.

13In the summary hearing, the applicant stated that she has not cashed the cheque she received from the company to pay her statutory termination and severance pay entitlements.

ANALYSIS

14Pursuant to Rule 19A of the Tribunal’s Rules of Procedure, the Tribunal may dismiss an application if there is reasonable prospect that the application or part of the application will not succeed.

15In Dabic v. Windsor Police Service, 2010 HRTO 1994, at paras. 8-10, the Tribunal made the following observations on the type of inquiry that may be involved in a summary hearing:

In some cases, the issue at the summary hearing may be whether, assuming all the allegations in the application to be true, it has a reasonable prospect of success. In these cases, the focus will generally be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation.

In other cases, the focus of the summary hearing may be on whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated. Often, such cases will deal with whether the applicant can show a link between an event and the grounds upon which he or she makes the claim. The issue will be whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him or her can show a link between the event and the alleged prohibited ground.

In considering what evidence is reasonably available to the applicant, the Tribunal must be attentive to the fact that in some cases of alleged discrimination, information about the reasons for the actions taken by a respondent are within the sole knowledge of the respondent. Evidence about the reasons for actions taken by a respondent may sometimes come through the disclosure process and through cross-examination of the people involved. The Tribunal must consider whether there is a reasonable prospect that such evidence may lead to a finding of discrimination. However, when there is no reasonable prospect that any such evidence could allow the applicant to prove his or her case on a balance of probabilities, the application must be dismissed following the summary hearing.

Timeliness of Allegations

16Section 34 of the Code provides that a person may file an application alleging that his or her rights under the Code have been infringed within one year of the incident (or last incident) to which the application relates. Under section 34(2) of the Code, a person may apply to the Tribunal more than one year after the incident to which his or her application relates (or the last incident in a series of incidents) only if the Tribunal is satisfied that the delay in filing the application was incurred in good faith and that no substantial prejudice would result to any person affected by the delay if the application were to proceed:

34 (1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series.

(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

17The mandatory one-year limitation period for filing an application is consistent with the policy objective, expressed elsewhere in the Code, that human rights claims should be dealt with expeditiously. As stated in Miller v. Prudential Real Estate, 2009 HRTO 1241, in order for an applicant to establish that a delay in filing an application was incurred in good faith, the applicant must show something more than simply an absence of bad faith; otherwise, there would be little meaning to the statutory limitation period.

18In my view, the incidents from 2009 and 2010 relating to discipline for alleged insubordination and also for the alleged harassment by one of the applicant’s supervisors are out of time. These incidents occurred more than one year before this Application was filed with the Tribunal. Significantly, there is no factual connection or nexus to the incidents that led to the applicant’s termination so as to form part of a series of incidents culminating in the termination. Nor has the applicant provided a good faith reason for her delay in filing an application in relation to these incidents from 2009 and 2010.

19Although the applicant attached copies of grievances she filed in 2010 and 2011 prior to her termination grievance, she provided no details in the Application surrounding the incidents that led to those grievances. In the summary hearing, she alleged that the grievances demonstrated a pattern of discrimination and harassment culminating in her termination in July 2011. She also appeared to be seeking to rely upon the grievances to support her discrimination claim against the union. Due to the lack of any particulars relating to the incidents that gave rise to the grievances preceding the applicant’s termination grievance, I find that the inclusion of these grievances, without further particulars, cannot be used to expand the Application beyond the one year time frame set out in s. 34 of the Code. Therefore, I do not find that they raise any timely allegations over which the Tribunal would have jurisdiction.

20For these reasons, I dismiss as untimely all allegations in the Application except those relating to the applicant’s termination of employment in July 2011 and the allegations relating to the union’s handling of her termination grievance.

Whether Any Timely Claims Have Been Appropriately Dealt with by Another Proceeding

21The company submits that any timely human rights claims were appropriately dealt with by the Minutes of Settlement that it entered into with the union. The company notes that the union has carriage of grievances and that the settlement arose from the process set out for the resolution of disputes under the collective agreement and the Labour Relations Act 1995 S.O. 1995 c.1, Schedule A, as amended (“LRA”). The company submits that the Application should be dismissed under s. 45.1 of the Code on the basis that the settlement appropriately dealt with the substance of the applicant’s termination grievance. It also submits that to allow the Application to proceed would be an abuse of process.

22Section 45.1 states:

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.

23In this case, the Application can only be dismissed under s. 45.1 if the two following conditions are met:

a. the settlement is a “proceeding” within the meaning of the Code; and

b. the settlement has “appropriately dealt with” the substance of the Application.

24The Tribunal’s jurisprudence establishes that settlements achieved in the context of a labour arbitration are “proceedings” for the purposes of section 45.1. See Dunn v. Sault Ste. Marie (City), 2008 HRTO 149 at para. 37 and Healey v. McMaster University, 2010 HRTO 1874 at para. 33 (“Healey”).

25There are strong public policy reasons to support settlement agreements in the unionized environment. These include promoting effective resolution of workplace disputes and encouraging the finality and certainty of settlement agreements. These reasons were articulated by the Tribunal in Dunn, above. However, there are equally strong policy reasons to carefully examine the circumstances surrounding a settlement where (as here) an applicant has not signed the settlement before determining that the settlement has appropriately dealt with the substance of a human rights claim.

26The Tribunal has had occasion to address circumstances where a settlement agreement was reached between an employer and a union, but where an applicant did not sign the settlement. The Tribunal has considered whether such a settlement can be considered to have “appropriately dealt with” the substance of an Application in several decisions. See, for example, Healey v. McMaster University, 2010 HRTO 1874 (“Healey”), Bhandari v. Ontario (Education), 2010 HRTO 1676 (“Bhandari”), Lumley v. Trillium Lakelands District School Board), 2010 HRTO 1117 (“Lumley”), and Melendez v. City of Toronto, 2012 HRTO 403 (“Melendez”).

27As pointed out in Bhandari, the Tribunal has adopted somewhat different approaches to the issue. In some cases, it has held that section 45.1 of the Code will not apply unless the applicant is a party to the settlement between the union and the employer: In other cases, the Tribunal has held that the fact that an applicant refused to sign a settlement agreement is not conclusive. In these cases, the Tribunal has found that it is appropriate to consider other factors to determine whether the applicant implicitly accepted the terms of the settlement: see Healey and Bhandari. I agree with the Tribunal’s approach in Bhandari. However, I note that the Tribunal has refused to presume that an applicant has accepted the terms of a settlement if it is imposed upon him or her unilaterally: see Melendez at para. 20.

28Applying the principles set out in the Tribunal’s case law cited above, I cannot accept that the substance of Application relating to the applicant’s termination has been appropriately dealt with by the Minutes of Settlement for the purpose of s.45.1 of the Code in this case. The applicant was not a party to the Minutes of Settlement. In fact, she did not even know that the union and company were meeting to settle her grievance. The applicant cannot be presumed to have accepted the terms of the settlement since they were imposed on her unilaterally and she has refused to cash the cheque issued by the company. Finally, the settlement did not provide her with any significant benefit as was the case, for example, in Bhandari. The settlement in this case only provided the applicant the termination and severance pay to which she was entitled under the ESA and no other benefit.

29For the reasons set out above, I cannot conclude that the Minutes of Settlement appropriately dealt with the substance of the Application in the circumstances of this case. For these same reasons, the Application also does not constitute an abuse of process.

Whether Timely Allegations Stand a Reasonable Prospect of Success

Allegations Against the Union

30The applicant claims that the union discriminated against her in the way in which it handled her grievances, including her termination grievance.

31The Tribunal has held that it is not discrimination for a union not to file or pursue a human rights grievance on behalf of a member, unless the reason for doing so was based on one of the grounds protected under the Code. In Traversy v. Mississauga Professional Firefighters’ Association, 2009 HRTO 996, the Tribunal stated as follows at para. 33:

The failure or refusal to take forward a human rights issue, such as accommodation of a disability in the workplace, is not, in and of itself, a breach of the Code. There may be many reasons that have no discriminatory overtones why a union might choose not to pursue a human rights claim on behalf of an employee: see Baylet v. Universal Workers Union, 2009 HRTO 700. There must be a claim, and a factual foundation for the claim, that the failure to act was based on discriminatory factors.

32In the summary hearing, the applicant conceded that she cannot point to any evidence that the union’s actions were based on discriminatory factors. Although she is dissatisfied with the representation she has received from the union, the Tribunal has made clear that this type of dissatisfaction in the absence of any evidence of discrimination does not amount to a breach of the Code.

33For these reasons, I find that the applicant’s Application against the union must be dismissed on the basis that it stands no reasonable prospect of success.

Allegations Against the Company

34Due to my findings above, the only timely claim against the company is that it discriminated against the applicant because of disability, family status and/or marital status when it terminated her employment due to innocent absenteeism in July 2011. In order to make a determination with respect to this claim, the Tribunal would have to consider a number of issues that can only be assessed in a full hearing on the merits. Based on the evidence and the applicant’s submissions in the summary hearing, I am satisfied that there is a reasonable prospect that she can show a link between her termination and the protected ground of disability.

35For these reasons, I decline to dismiss the Application against the company as having no reasonable prospect of success. Of course, I am not making any decision about the ultimate success of the remaining allegations, merely that they meet the threshold of having a reasonable prospect of success.

ORDER

36In light of the above, the Application is dismissed except for the applicant’s allegation that the company discriminated against her on the basis of disability, family status and/or marital status when it terminated her employment due to innocent absenteeism. Accordingly, the company shall file a Response to this allegation no later than 35 days after the date of this Interim Decision.