Blackburn v. Great Lakes Speciality Meats of Canada Inc., 2015 HRTO 226

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Melanie Blackburn

Applicant

-and-

Great Lakes Speciality Meats of Canada Inc.

Respondent

INTERIM DECISION

Adjudicator: Alison Renton

Date: February 24, 2015

Citation: 2015 HRTO 226

Indexed as: Blackburn v. Great Lakes Speciality Meats of Canada Inc.

WRITTEN SUBMISSIONS

Melanie Blackburn, Applicant

Kathleen DeBlock Boersma, Counsel

Great Lakes Speciality Meats of Canada Inc., Respondent

Paula Rusak, Counsel

1This is an Application filed under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment on the basis of sex, including sexual harassment and sexual solicitation and advances. The individual whom the applicant alleges sexually harassed and sexually solicited her has not been named as a personal respondent.

2The respondent has filed a Response denying the allegations against it.

3By letter dated December 20, 2012, on consent of the parties, the Tribunal deferred the Application “pending completion of the WSIB proceeding” as the applicant had filed a claim under the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sched. A.

4On October 7, 2013, the Tribunal wrote to the parties requesting an update as to the status of the WSIB proceeding.

5The applicant wrote to the Tribunal on October 11, 2013 advising that the WSIB proceeding remained ongoing and that, in addition, criminal proceedings related to the individual who allegedly sexually harassed and sexually solicited the applicant were ongoing and scheduled to proceed in December 2013.

6The respondent wrote to the Tribunal on October 25, 2013. The respondent indicated that the WSIB released a decision on February 25, 2013 in favour of the applicant and, consequently, the 60 day time period for reactivation, set out in Rule 14 of the Tribunal’s Rules of Procedure, had passed. The respondent requested that the Tribunal dismiss the Application given the applicant’s delay in seeking reactivation. It further submitted that the Application was deferred pending the WSIB proceeding and not because of any criminal matter. It took the position that the criminal matter is not relevant to the Application and provided a copy of the WSIB’s February 2013 decision allowing the applicant’s WSIB claim.

7The applicant wrote to the Tribunal in response to the respondent’s submissions maintaining that the WSIB proceeding remains active because the duration of benefits was unknown, the applicant and WSIB are in the process of determining whether return to work training for a new career will be provided and because the applicant had not returned to work. The applicant argued that the criminal proceeding was not raised at the time of the deferral request because that process was not yet underway. The applicant notes that her counsel wrote to the respondent’s counsel by letter dated August 16, 2013 proposing that moving forward with the Application would be addressed once there was final knowledge of the extent of the WSIB lost income replacement and how the criminal charges would be resolved. The applicant argued that since the respondent did not reply to the August 16, 2013 correspondence, the respondent did not consider it prejudicial to continue to wait for the WSIB process.

8A Case Assessment Direction was issued by the Tribunal seeking the parties’ submissions on the following issues:

a. Whether the WSIB proceeding is completed;

b. The issue of any alleged delay in reactivation and any alleged prejudice to the respondent if the 60 day reactivation timeline is waived; and,

c. Details regarding the criminal process – what it is, when it started and whether deferral to the criminal proceeding is appropriate.

9Both parties filed submissions. Those submissions were primarily based upon the previous positions that they had taken, with references to case law, and further updates.

analysis and decision

10The Application will continue to be deferred until the conclusion of, at least, the individual’s criminal proceedings and the WSIB’s psychological assessment of the applicant’s ability to return to work.

11I accept the applicant’s position that when the Tribunal deferred the Application “pending completion of the WSIB proceeding” it was unclear what was meant by the word “proceeding”. I accept the applicant’s position that the WSIB proceeding, which determined that the applicant was entitled to WSIB benefits, explored her ability to return to work with the respondent or an alternate employer, and granted the applicant’s request for a psychological assessment, which, the applicant submitted, should be conducted after the criminal proceedings were finished, would have an impact upon the proceedings before the Tribunal, not just pertaining to loss of wages, but also to the allegations in the Application that the respondent has not been supportive to her in terms of time and resources. I do not see that the respondent has been prejudiced, particularly since it requested deferral.

12I also see the criminal proceedings as being relevant to issues before the Tribunal notwithstanding that the individual who allegedly sexually assaulted the applicant is not named as a personal respondent. While the applicant did not write directly to the Tribunal to inform it that the individual had been criminally charged, or seek, at the time, deferral of the Application because of it, it did raise this issue with the respondent. Even without seeking a further deferral because of the criminal proceedings, the Tribunal would likely have deferred the Application to avoid making factual findings that would be made during the criminal proceedings and to avoid the potential of having the individual who was charged from testifying before the Tribunal while his criminal proceedings were ongoing, notwithstanding that he was not named as a personal respondent.

13Accordingly, the Application is deferred pending conclusion of the individual’s criminal proceedings and the WSIB’s psychological assessment of the applicant. The applicant is directed to file a request to re-activate her Application, within 60 days of these occurring, or from the date of this Interim Decision, whichever is the latter. As both parties have agreed to mediation, if re-activated, the Tribunal will schedule the matter for mediation.

14I am not seized with this matter.