Kinney v. Middlesex-London Emergency Medical Services Authority, 2014 HRTO 715

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Michelle Kinney

Applicant

-and-

Middlesex-London Emergency Medical Services Authority and

Ontario Public Service Employees Union

Respondents

INTERIM DECISION

Adjudicator: Jo-Anne Pickel

Date: May 20, 2014

Citation: 2014 HRTO 715

Indexed as: Kinney v. Middlesex-London Emergency Medical Services Authority

WRITTEN SUBMISSIONS

Thames Emergency Medical Services, Respondent

Paula Rusak, Counsel

Ontario Public Service Employees Union, Respondent

Richard Blair, Counsel

Middlesex-London Emergency Medical Services Authority, Respondent

Stephanie N. Jeronimo, Counsel

Introduction

1This Interim Decision addresses a Request for Order During Proceedings (“Request”) filed by Thames Emergency Medical Services that the Tribunal remove it as a respondent to this Application.

2The applicant filed an Application alleging discrimination because of disability, contrary to the Human Rights Code, R.S.O. 1990, c. H. 19, as amended (the “Code”). The applicant named as a respondent Middlesex-London Emergency Medical Services Authority (“MLEMSA”). In her Application, she alleged that that MLEMSA discriminated against her when employees receiving disability-related benefits were not offered employment when MLEMSA took over the provision of emergency services in the Middlesex-London area in or around March 2012. The applicant was in receipt of WSIB benefits at the time.

Factual Background

3Prior to March 2012, emergency services in the Middlesex-London area were provided by Thames Emergency Medical Services (“TEMS”). When MLEMSA took over responsibility for the services previously provided by TEMS, it entered into a Transition Agreement with the Ontario Public Service Employees Union (“OPSEU”), the bargaining agent for paramedical employees including the applicant. The Transition Agreement identified MLEMSA as a successor employer for the purposes of the Labour Relations Act. Among other things, the Transition Agreement addressed how the employment of bargaining unit employees would be dealt with after MLEMSA took over the services previously provided by TEMS. In its Response to the Application, MLEMSA named the Ontario Public Service Employees Union (“OPSEU”) as an additional respondent because it was a party to the Transition Agreement described above.

4In its Response, OPSEU named TEMS as an additional respondent. OPSEU submitted that TEMS should be added as a respondent because TEMS’ refusal to permit the applicant to remain employed by TEMS was discriminatory. OPSEU submitted that TEMS’ refusal to continue to employ the applicant has contributed to the damages she has suffered.

5OPSEU claimed that TEMS was aware of the inclusion in the MLEMSA-OPSEU Transition Agreement of the impugned provisions relating to the employment of employees on WSIB or disability benefits. It also claimed that representatives of TEMS were present at the meetings where the Transition Agreement was negotiated. Finally, OPSEU claimed that the applicant has subsisting enforceable rights under the collective agreement with TEMS. In order to seek enforcement of such rights, the applicant submitted a grievance claiming that she was wrongfully terminated by TEMS. Among other things, the grievance alleges that the applicant’s termination by TEMS violated the Code. OPSEU referred the grievance to arbitration and provided counsel to the applicant. The arbitrator dismissed the grievance against TEMS. OPSEU has sought judicial review of the arbitrator’s award.

TEMS’ Request

6TEMS has requested that the Tribunal remove it as a respondent. TEMS submits that it is the applicant’s prerogative to define who she feels has violated her rights under the Code. TEMS notes that the applicant named only MLEMSA as a respondent and that she did not name TEMS. TEMS submits that the ongoing judicial review is irrelevant to this Application. It notes that in Interim Decision, 2013 HRTO 1308, the Tribunal found that it was not appropriate to defer this Application pending the outcome of the grievance since the two proceedings deal with distinct issues involving different employers. The Tribunal noted that the grievance proceeding dealt with the termination of the applicant’s employment by Thames EMS, while this Application deals with the MLEMSA’s failure to hire the applicant.

7TEMS submits that the facts alleged in the Application and in OPSEU’s Response do not support a claim of liability on its part. It further submits that it would be substantially prejudiced in its ability to respond to the Application because it was not involved in the negotiation of the contents of the Transition Agreement and should not be subjected to the legal costs of proceedings in these circumstances.

Analysis

8The analysis applied by the Tribunal when dealing with requests to add respondents is the analysis set out in Smyth v. Toronto Police Services Board, 2009 HRTO 1513, at para. 12 (“Smyth”). In Smyth, the Tribunal set out the following three considerations for deciding whether to add a respondent:

1. Are there allegations that could support a finding that the proposed respondent violated the Code?

2. If the proposed respondent is an individual and an organization is also named, is there a compelling reason to include him or her as a respondent?

3. Would it be fair, in all the circumstances, to add the proposed respondent?

9In its jurisprudence, the Tribunal has made clear that the allegations that must be considered at the first stage of the Smyth analysis are the allegations set out in an application or in amendments sought to be made to it. See, for example, Smyth at para. 12 and Pieters v. Liquor Control Board of Ontario, Store 568, 2007 HRTO 22 at para. 10. It is for the applicant to frame the scope of her Application. In this case, the applicant alleged that she was discriminated against when MLEMSA failed to hire her pursuant to the Transition Agreement with OPSEU. She did not raise any allegations against TEMS. The applicant also did not include any allegations against TEMS in her Reply. For these reasons, I find that there are no allegations raised by the applicant that could support a finding that TEMS violated the Code.

10It appears from the applicant’s grievance that she has made Code-based allegations against TEMS in that proceeding. However, as noted in the Tribunal’s Interim Decision, that proceeding deals with a different issue than the issue that is properly before the Tribunal in this Application.

Order

11For the reasons set out above, TEMS’ request to be removed as a party is granted. The style of cause shall be amended accordingly.

12I am not seized.