Maves v. Canadian Niagara Power Inc., 2014 HRTO 138

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Christine Maves

Applicant

-and-

Canadian Niagara Power Inc.

Respondent

-and-

International Brotherhood of Electrical Workers, Local 636

Intervenor

INTERIM DECISION

Adjudicator: Ruth Carey

Date: January 30, 2014

Citation: 2014 HRTO 138

Indexed as: Maves v. Canadian Niagara Power Inc.

WRITTEN SUBMISSIONS

Christine Maves, Applicant

Allan M. Kaufman, Counsel

Canadian Niagara Power Inc., Respondent

Robb Macpherson and Matthew Demeo, Counsel

International Brotherhood of Electrical Workers, Local 636, Intervenor

Craig A. Flood, 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 disability. The Application alleges that as soon as the employer discovered the applicant was taking a leave of absence for medical reasons it laid her off; and by laying her off the employer interfered with the applicant's ability to receive short term disability benefits.

2This Interim Decision is being issued in response to:

• A Request for Order During Proceedings ("RFOP") filed by the respondent on November 22, 2013, asking for an ordering removing a personally named respondent as a party to the Application;
• A Request to Intervene filed by the International Brotherhood of Electrical Workers, Local 636 ("the Union") on December 23, 2013;
• The request for a summary hearing pursuant to Rule 19A.1 of the Tribunal's Rules of Procedure ("the Rules") contained within the Response; and
• The request within the Response that the Application be dismissed pursuant to s. 45.1 of the Code and Rule 22.1 on the basis that the substance of the Application has been appropriately dealt with pursuant to its collective agreement with the Union, or alternatively, as an abuse of process.

3For the reasons stated below: the RFOP requesting removal of the personally named respondent is granted; the Request to Intervene is granted; the request for a summary hearing is denied; the Registrar will schedule mediation of the Application and the request that the Application be dismissed pursuant to s. 45.1 or otherwise as an abuse of process shall be considered following the mediation if no settlement is reached.

Removal of the Personal Respondent

4The Application as originally filed named as a respondent an individual employed by the corporate respondent. On November 22, 2013, the respondents filed a RFOP asking that the Tribunal order the removal of the personal respondent as a named party to the Application. On December 2, 2013, the respondents forwarded to the Tribunal a copy of an e-mail from the applicant's representative to the respondent. The e-mail states the applicant consents to the removal of the personal respondent as a named party to the Application.

5Given the substance of the RFOP and the applicant's consent to the order requested, the RFOP is granted. I have amended the style of cause to reflect the removal of the personal respondent as a party to the Application.

The Request to Intervene

6On December 23, 2013, the Tribunal received a Request to Intervene from the Union. Neither the applicant nor the respondent filed submissions with respect to the Union's Request and the time for doing so has now passed.

7The Union is a party to a collective agreement with the respondent. At the relevant time the applicant was a member of the Union's bargaining unit. The Application requests reinstatement as a remedy which has the potential to affect other members of the bargaining unit.

8As stated in Boyce v. Toronto Community Housing Corporation, 2009 HRTO 131 at para. 13:

A union or association nearly always has an interest in a human rights application brought by an employee in a bargaining unit it represents when the application alleges discrimination in employment. Absent exceptional circumstances, the applicant's bargaining agent will be granted intervention status in Tribunal proceedings where it requests it.

9As there are no exceptional circumstances here indicating the intervention request is inappropriate, the Union's request to intervene is granted. The extent of the Union's participation in the hearing of the Application shall be determined by the adjudicator presiding over the hearing.

The Request for Summary Hearing

10In its Response filed on December 20, 2013, the respondent requests that the Tribunal hold a summary hearing pursuant to Rule 19A.1 of the Rules to determine whether or not the Application should be dismissed in part or in whole as having no reasonable prospect for success. The stated basis for this request is that the Application does not contain sufficient factual allegations to constitute a prima facie case; or put in the alternative, the facts as pled do not point to a link between the applicant's alleged disability and the behaviour or events complained of.

11The respondent's request for a summary hearing is denied. The Application and Response both indicate there is a key factual issue in dispute; namely, the timing of the respondent's decision to lay-off the applicant. The applicant alleges she was laid off within days of going on a medical leave; and because of the timing of events and a previous e-mail she received regarding her hours of work she argues the lay-off was related to the leave. The respondent alleges the decision to lay-off the applicant was made prior to the applicant becoming ill and prior to the respondent being aware of the applicant's alleged disability; it argues therefore, there is no connection to the applicant's lay-off. This factual dispute about the timing of the respondent's decision cannot be resolved without hearing some evidence.

12Summary hearings usually proceed on the basis that the factual allegations in the Application are assumed to be true and the question of whether or not the Application has a reasonable prospect of success is explored in that context. Given the factual dispute here underpinning the positions of both parties, the summary hearing process is not appropriate.

The Request to Dismiss Pursuant to s. 45.1 or as an Abuse of Process

13Pursuant to question 7 of the Response, the respondent seeks an order dismissing the Application on the basis that another proceeding has in whole or in part appropriately dealt with the substance of the Application. Question 7 of the Tribunal's Form 2 instructs respondents to attach to the response a copy of the decision in question. There is no decision attached to the Response here; rather the respondent has attached a copy of two grievances and an e-mail from the Union withdrawing the two grievances on the applicant's behalf. The body of the Response also refers to abuse of process as a basis for its request for dismissal.

14Rule 22 of the Rules say:

22.1 The Tribunal may dismiss part or all of the Application where it determines, under s. 45.1 of the Code, that another proceeding has appropriately dealt with the substance of part or all of an Application.

22.2 The parties will have the opportunity to make oral submissions before the Tribunal dismisses an Application under Rule 22.1.

15Pursuant to Rule 22.2 requests for dismissal under s. 45.1 of the Code are typically dealt with by the Tribunal by way of an oral preliminary hearing either by teleconference or in person.

16As both parties have consented to mediation, and given the Tribunal's mandate to provide expeditious and accessible processes to assist the parties to resolve complaints, a mediation session will be scheduled by the Registrar. If mediation is unsuccessful the Tribunal will then address the respondent's request with respect to dismissal and s. 45.1 and abuse of process.

DECISION

17The RFOP requesting removal of the personally named respondent is granted.

18The Union's Request to Intervene is granted.

19The respondent's request for a summary hearing is denied.

20The Registrar will schedule a mediation session and the respondent's request that the Application be dismissed pursuant to s. 45.1 or otherwise as an abuse of process shall be considered following the mediation if no settlement is reached.

21I am not seized of this matter.