Lesperance v. Caressant Care Nursing and Retirement Homes Limited, 2014 HRTO 104

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

INTERIM DECISION

Adjudicator: Ruth Carey Date: January 23, 2014 Citation: 2014 HRTO 104 Indexed as: Lesperance v. Caressant Care Nursing and Retirement Homes Limited

APPEARANCES

Debra Lesperance, Applicant Richard Miller, Counsel

Caressant Care Nursing and Retirement Homes Limited, Respondent Thomas A. Stefanik, Counsel

Service Employees International Union, Local 1, Respondent Helen Nowak, 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 resolving the issues of liability and public interest remedies. The Tribunal subsequently issued Interim Decision, 2013 HRTO 2043, on consent. As a result of the minutes of settlement and the Interim Decision, the remaining issue to be heard is what personal remedy, if any, should be awarded to the applicant.

3On January 17, 2014, the Application came before the Tribunal for hearing. For the reasons stated below, and with the consent of the parties, I converted the hearing of the Application to a preliminary hearing with respect to procedural matters. This Interim Decision deals with a Request for Order During Proceedings (“RFOP”) filed by the applicant on January 15, 2014; reflects the orders and directions that the parties consented to during the preliminary hearing; and clarifies some further narrowing of the scope of the hearing.

4On January 15, 2014, the applicant filed and delivered a RFOP requesting orders with respect to further production and the calling of witnesses for the hearing on remedy. As of the date of the hearing before me, the respondent union had not filed or delivered any documents to be relied on or witness statements. However, the union states that it intends to lead evidence and make argument with respect to the question of joint and several liability in the context of apportioning remedy, but is not yet prepared to do so. This issue is not addressed by the minutes of settlement. Further, the corporate respondent filed and delivered a single witness statement that provides no particulars except the dates of employment of the applicant and her medical leaves. It also states it intends to lead additional evidence at the hearing on remedy, but is not yet prepared to do so.

5As a result of the above, I concluded that none of the parties were prepared for the Application to be heard on January 17, 2014, as scheduled. With the consent of the parties, I then conducted a preliminary hearing to hear submissions with respect to the applicant’s outstanding RFOP and to consider further orders aimed at ensuring all parties are hearing ready. In the end result, the parties consented to the orders and directions that follow.

6In addition, the parties agreed to narrow the scope of the hearing as follows:

• The applicant withdraws the allegation of breach of the Code with respect to the social area of contracts;

• The sole remedy the applicant seeks with respect to the period after July, 2011, is her return to work in her original line; and

• There is no dispute that the applicant had a disability as defined under the Code for the period of the applicant's first medical leave.

ORDERS AND DIRECTIONS

7The Tribunal makes the following orders/directions with the consent of the parties:

a. By March 17, 2014, the respondent union shall file and deliver its productions pursuant to Rules 16 and 17 of the Tribunal’s Rules of Procedure;

b. By March 17, 2014, the respondents shall file and deliver the seniority list from July, 2010, and the vacation sign-up sheets from November and December, 2010, if obtainable or in their possession; and any documents or information available to them with respect to the current lines that exist in dietary;

c. By March 17, 2014, the respondents shall file and deliver witness statements or other documents that set out how the applicant’s seniority was calculated for the thirty day period after the commencement of her first medical leave;

d. By March 17, 2014, the corporate respondent shall file and deliver any relevant call in sheets available to it or otherwise in its possession that have not already been disclosed to the applicant for the period May, 2010, to July, 2011;

e. As soon as possible and no later than March 17, 2014, the corporate respondent shall inform the other parties of the identity of any employees who made the telephone calls listed in the relevant call in sheets and indicate whether or not the corporate respondent intends to call those employees as witnesses. It is understood that if the corporate respondent decides not to call these employees as witnesses, the applicant may elect to do so which may be expected to result in the applicant needing an extension of time to request summonses and file and deliver corresponding witness statements;

f. By March 17, 2014, if not already disclosed, the corporate respondent shall file and deliver the work schedule for dietary for the period May, 2010, to July, 2011, and for housekeeping during the period the applicant was in housekeeping;

g. As soon as possible and no later than March 17, 2014, the respondents shall file and deliver any notes, records, emails, draft or final collective agreements, awards, or documents of any kind, created during the period April, 2010, to July, 2011, that relate to Article 15.17 of the collective agreement between the respondents related to the applicant’s employment or to a similar clause in any collective agreement the respondents are both party to;

h. At the hearing of the Application, unless the Tribunal orders otherwise, the respondents shall proceed to lead their evidence first, followed by the applicant, and the respondents will have a broad right of reply following the applicant’s evidence;

i. Within seven days of the date of this Interim Decision the parties shall provide to the Registrar their available dates for hearing this Application for the six month period starting April 1, 2014; and

j. If the parties do not comply with subparagraph i above then the Registrar may proceed to schedule any 2 days for the hearing of the Application.

8I am not seized.