Myers v. William Osler Health System, 2014 HRTO 1331

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Tara Myers Applicant

-and-

William Osler Health System and Laura Albisu Respondents

INTERIM DECISION

Adjudicator: Douglas Sanderson Date: September 10, 2014 Citation: 2014 HRTO 1331 Indexed as: Myers v. William Osler Health System

APPEARANCES

Tara Myers, Applicant Kristin Bisbee, Counsel

William Osler Heath System and Laura Albisu, Respondents Christopher Parkes, Counsel

Teamsters Union, Local 419, Respondent Michael Hancock, 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 because of race, colour, ancestry, ethnic origin and reprisal.

Background

2The applicant is an employee of the organizational respondent and identifies herself as a black person of Caribbean – Canadian descent, of African – Canadian descent and of Arawak descent. The applicant complains of discrimination, bullying and harassment over a five year period, including exclusion and isolation in the workplace, comments to the effect that she would lose her employment and comments about her appearance. The organizational respondent terminated the applicant’s employment on March 13, 2013. The applicant notes that the subject matter of the Application was the subject matter of a union grievance filed by her union, but alleges that the union did not represent her properly regarding the grievance and that she did not sign the minutes of settlement purported to resolve the grievance.

3The respondents filed a Response in which they requested Dismissal without Full Response because of a settlement reached between the organizational respondent and union regarding a grievance dealing with the same subject matter as this Application.

4By Case Assessment Direction dated June 8, 2012, the Tribunal directed that the matter be scheduled for a summary hearing pursuant to Rule 19A of the Tribunal’s Rules of Procedure to determine whether the Application should be dismissed, in whole or part, because it has no reasonable prospect of success, because of the settlement of the applicant’s grievance or as an abuse of process. The Tribunal held the summary hearing by teleconference on July 17, 2014.

Withdrawal as against Union

5On July 3, 2014, the applicant filed written submissions in advance of the summary hearing. Amongst other things, the applicant stated that she agreed to withdraw the Application as against her union, Teamsters Union, Local 419 (the “union”). The union submitted that the Tribunal should grant the applicant’s Request to Withdraw, but submitted that the withdrawal ought to be on a with prejudice basis to her ability to revive the Application or file a new one based on the same allegations set out in the Application and subsequent materials filed by the applicant. The union relied on the following facts in support of its position that the Request to Withdraw should be granted on a “with prejudice” basis.

1. The applicant obtained legal counsel prior to agreeing to withdraw the Application;
2. The agreement to withdraw was made in advance of a hearing to determine whether the Tribunal would dismiss the Application against the union;
3. The union has had to incur expense to prepare a Response to the Application and to prepare for the summary hearing; and,
4. The applicant appears to make new allegations of impropriety by the union.

Analysis and Decision

6In D.R. v. Upper Grand District School Board, 2011 HRTO 1751, the Tribunal allowed the applicant to withdraw his Application without conditions, commenting at paragraph 4 as follows:

The Tribunal appreciates the respondents’ concerns about the time and resources they have devoted to responding to this Application. Nonetheless, I see little to be gained by an inquiry at this stage into whether the circumstances of this Application and the possible motivation for the applicant’s decision to seek to withdraw the Application should lead to the sort of order sought by the respondents. If the applicant seeks to re-file the same allegations in another application, the respondents may raise their objection at that time and may request that the Tribunal refuse to consider a new application.

7I see no reason to depart from this approach. If the applicant seeks revive this Application or to file a new Application, the respondents may raise their objections at that time.

8The applicant’s request to withdraw this Application is granted without terms. The style of cause shall be amended accordingly.

9In these circumstances, it is unnecessary to address the union’s argument that the Application as against the union amounts to an abuse of process.

Minutes of Settlement

10There is no dispute that the union filed a grievance on the applicant’s behalf regarding the termination of her employment. There is no dispute that the respondent hospital and the union entered into Minutes of Settlement (the “Minutes”) regarding that grievance. The union agreed to withdraw the grievance in exchange for certain funds to be paid to the applicant. The Minutes also contain language indicating that the applicant would not file an Application under the Code regarding her employment or the termination of her employment. There is also no dispute that the applicant did not agree to the settlement reached between the respondent hospital and the union, that she did not execute the Minutes, and that she has not accepted any payment pursuant to the agreement.

11In written submissions filed with their Response the respondents submitted that the organizational respondent and the union negotiated the Minutes in good faith. The organization submitted that it regularly negotiates directly with the union, on the understanding that the union has the authority to negotiate and settle grievances on behalf of itself and its members. Given the nature of the settlement, as described above, the respondents submitted that it considers this matter properly dealt with in accordance with the Minutes. During the summary hearing, counsel for the respondents submitted that the hospital will be “confused” if the Minutes do no result in the resolution of the Application.

12In her both her written submission and during the summary hearing, the applicant took issue with several of the terms of the Minutes. The applicant’s fundamental position, however, was that the applicant did not agree to the settlement reached between the organizational respondent and the union, did not execute the Minutes and did not accept payment of the funds payable to her pursuant to the Minutes.

Analysis and Decision

13Section 45.1 of the Code 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.

14In Dunn v. Sault Ste. Marie (City), 2008 HRTO 149, the Tribunal found that a settlement of a proceeding dealing with the same facts and issues as an application was a proceeding that appropriately dealt with the substance of the application. In Van Barneveld v. I.O.O.F. Seniors Homes, 2009 HRTO 448 and Vere v. Canadian Auto Workers, 2011 HRTO 748, the Tribunal found that a settlement of a union grievance based on the same facts and issues arising in an application is a proceeding that has appropriately dealt the substance of the application. On several occasions the Tribunal has also dismissed applications as abuses of process where the applicant has agreed to release respondents from claims under the Code. See, for example, Gallina v. Ontario (Child and Youth Services), 2014 HRTO 390.

15However, in Dunn, Van Barnevald, Vere and Gallina above, the applicants agreed to the settlements in question and signed Minutes of Settlement. That is not the case in this Application, as the applicant did not execute the Minutes and also did not accept payment of the funds specified in the Minutes. In my view, the circumstances of this Application are closer to those found in Paterno v. Salvation Army, Centre of Hope, 2010 HRTO 10, where the Tribunal found that a grievance unilaterally withdrawn by a union does not amount to a proceeding that has appropriately dealt with the substance of an application. I appreciate that the parties to a collective agreement are the employer and the union and that a union does not need the consent of a grievor to settle a grievance under a collective agreement. However, I find that a grievance settled without the agreement of the grievor/applicant, as was the case here, does not amount to a proceeding that has appropriately dealt with the substance of an Application before this Tribunal. As the applicant has not released the respondents regarding her Code claims, there is also no basis for finding that the Application amounts to an abuse of process.

Reasonable Prospect of Success

16The summary hearing process is described in Rule 19A of the Tribunal’s Rules of Procedure. The issue in a summary hearing is whether the Application should be dismissed in whole or in part on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.

17In Dabic v. Windsor Police Service, 2010 HRTO 1994, the Tribunal stated at paras 8 and 9:

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.

18During the summary hearing the applicant’s counsel thoroughly reviewed the timeline of the applicant’s complaints, explained how the incidents in question could amount to discrimination and pointed to evidence that, if accepted, arguably could establish a link between the respondents’ actions and the Code grounds cited. I appreciate that the respondents deny the applicant’s allegations and that their position is that the applicant misconstrued their actions towards her as racist. In my view, these are issues that require a full hearing where the presiding adjudicator can dispose of the Application on a final basis. In my view, it would be premature to dispose of the Application at this stage.

19Pursuant to Rule 19A.6 I do not consider it necessary to provide further reasons for this Interim Decision. I cannot determine that the Application has no reasonable prospect of success. Accordingly, the Application will move on to the next stage in the hearing process.

Order

20The Tribunal orders as follows:

1. The applicant’s request to withdraw the Application as against the union is granted and the style of cause amended accordingly; and,
2. The Application will move on to the next stage in the hearing process.

21I am not seized.