Tammy May v. Mill Creek Care Centre, 2014 HRTO 1204

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Tammy May

Applicant

-and-

Mill Creek Care Centre

Respondent

INTERIM DECISION

Adjudicator: Paul Aterman

Date: August 11, 2014

Citation: 2014 HRTO 1204

Indexed as: May v. Mill Creek Care Centre

WRITTEN SUBMISSIONS

Tammy May, Applicant

Joseph Tascona, Counsel

Mill Creek Care Centre, Respondent

Steven Wilson, Counsel

introduction

1This Application alleges discrimination with respect to employment because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The applicant is a personal support worker employed by the corporate respondent. In her Application she alleges discrimination by the respondent with respect to a workplace injury in the period from July 28, 2012 to November 5, 2012. In Interim Decision 2014 HRTO 625 the applicant was directed to provide particulars in relation to these allegations. The respondent requests dismissal of the allegations on two grounds: that they have been appropriately dealt with by another proceeding and that they have no reasonable prospect of success.

3In the above Interim Decision the applicant was also directed to provide particulars in relation to alleged reprisals which she requests to add to her Application by way of amendments.

4This Interim Decision explains how the Tribunal will deal with these requests.

Requests to dismiss allegations covering the period July 28 – November 5, 2012

5The particulars provided by the applicant in relation to the above period allege that when she was injured at work the respondent treated her in a callous manner, refused to accommodate her disability and singled her out for discipline. She alleges that this treatment all flowed from her decision to report her injury to the Workplace Safety and Insurance Board. She further alleges that the respondent was aware that she was being subjected to harassment by co-workers that was linked to her disability and that the respondent took no action in relation to this.

6The respondent requests dismissal of these allegations pursuant to s.45.1 of the Code on the grounds that other proceedings have appropriately dealt with their substance. It maintains that these allegations were the subject of a union grievance dated August 8, 2012. They say that the grievance was withdrawn with the applicant’s consent, and in consideration for the withdrawal the corporate respondent agreed to organise a team-building and education session on harassment and bullying in the workplace.

7The grievance was withdrawn on July 17, 2013. The withdrawal is framed in the following terms:

Re: Grievance filed August 8, 2012 - Violation of Article 3 - Management Rights and all other relevant articles of the Collective Agreement by displaying a lack of protection from Management of Ms. Tammy May.

After a meeting on July 3, 2013 between the Grievor, Ms. Tammy May, the Union, Suzanne Dunphy-Snow, and Management, Karrie Warner and Maureen Pauls at Mill Creek Care Centre, the Grievor, Ms. Tammy May has agreed to withdraw the above noted grievance with the understanding that the Employer is in the process of arranging a Team Building session and an education to the membership of Mill Creek Care Centre on Harassment and Bullying in the workplace.

8The Tribunal will not dismiss an Application that is within its jurisdiction without first providing the parties an opportunity to make oral submissions (s. 43(2) of the Code). Accordingly, a hearing will be scheduled by teleconference for the purpose of determining whether to grant the respondent’s request to dismiss the allegations covering the period from July 28 – November 5, 2012 on the grounds that the filing of the grievance and its subsequent withdrawal appropriately dealt with the substance of those allegations.

9At the teleconference the parties should be prepared to make submissions on whether there was another proceeding within the meaning of s.45.1 of the Code and to set out what they believe were both the scope of the grievance and the scope of the resolution. No witnesses will give evidence during this hearing. As the requesting party, the respondent will proceed first.

10In relation to the respondent’s request to dismiss the above allegations on the ground that they have no reasonable prospect of success, this request is denied. The Tribunal is not required to provide reasons in relation to a decision not to hold a summary hearing.

Request to amend the application to add allegations of reprisal

11In Interim Decision 2014 HRTO 625 I indicated that the Tribunal would consider the applicant’s request to amend her Application after she provided particulars of the alleged reprisals she seeks to add to the Application. In the Interim Decision I also determined that the applicant’s allegations of discrimination on the basis of disability that related to her return to work and to her request for day shifts (the April 29 and July 4, 2013 grievances) were dismissed because they were resolved through the grievance process.

12The particulars of the reprisal allegations in large part reiterate the applicant’s allegations with respect to her treatment in the return to work process. These allegations have already been dismissed by the Tribunal and will not be added as amendments to the Application.

13The allegations of reprisal that remain are that the applicant was disciplined excessively by being suspended on November 5, 2012, that she was harassed upon her return to work (this is set out in the email she sent to the respondent on June 25, 2013 which is styled as a “grievance” but was not sent by the applicant’s union) and the allegations of events on and after August 8, 2013.

14In determining requests to amend applications under section 34 of the Code, the Tribunal generally considers the nature of the proposed amendments, the reasons for the amendments, the timing of the request to amend, and the prejudice to the respondent (see Dube v. Canadian Career College, 2008 HRTO 336; Wozenilek v. 7-Eleven Canada Inc., 2009 HRTO 926; and Dunford v. Holiday Ford Sales, 2009 HRTO 1563).

15The applicant is permitted to amend her Application to add these remaining allegations. In order to prove reprisal she will have to demonstrate that the respondent intended to retaliate against her because she exercised her Code rights. The reason that these amendments are allowed is that the Application is in a relatively early stage of the Tribunal’s process, and as a result there is not significant prejudice to the respondent.

order

16The respondent’s request to dismiss the allegations relating to the period July 28- November, 2012 because they have no reasonable prospect of success is denied.

17The Registrar is requested to schedule a half day hearing by teleconference to determine whether another proceeding has appropriately dealt with the allegations relating to the period July 28 - November, 2012. The parties are to provide each other and the Tribunal with any additional documents and cases that they intend to rely on at least 21 days before the teleconference.

18The applicant’s request to amend her Application to add allegations of reprisal is granted in part, in accordance with the scope set out in paragraph 13 above.