HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Tammy May
Applicant

-and-

Mill Creek Care Centre
Respondent

-and-

Labourers’ International Union of North America, Local 183
Affected Party

INTERIM DECISION

Adjudicator: Leslie Reaume
Date: April 7, 2015
Citation: 2015 HRTO 449
Indexed as: May v. Mill Creek Care Centre

APPEARANCES

Tammy May, Applicant
Joseph Tascona, Counsel

Mill Creek Care Centre, Respondent
Steven Wilson, Counsel

Liuna, Local 183, Intervenor
Neil Keating, 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”). This Interim Decision deals with a request by the respondent to dismiss portions of the Application on the basis that they have been appropriately dealt with in another proceeding, pursuant to section 45.1 of the Code.

2The applicant is a personal support worker employed by the corporate respondent. She alleges discrimination by the respondent with respect to a workplace injury which occurred in July, 2012.

3This decision arises from the materials filed by the parties, previous decisions of the Tribunal in relation to this Application and oral submissions which were heard on February 18, 2015.

Procedural Background

4The history of this matter is set out in a number of previous Interim Decisions and Case Assessment Directions (“CAD’s”). The allegations, some of which have been dismissed by the Tribunal, are divided into three periods of time:

• the period from July to November 2012, during which the applicant alleges that she was harassed with respect to a workplace injury – these allegations are the subject of this Interim Decision;

• the period from April 22, 2013 to July 3, 2013, which related to her return to work – these allegations were dismissed in a previous Interim Decision pursuant to section 45.1; and

• reprisal allegations related to the period after her return to work on July 3, 2013, which the applicant was permitted to add as an amendment to her Application – these allegations will proceed to hearing and are not the subject of this Interim Decision.

5Only the allegations covering the first period from July to November, 2012 are before me for the purpose of determining the respondent’s section 45.1 request. However, a brief review of the directions issued by previous Vice-chairs is helpful in establishing the context for my Interim Decision. I have not included CAD’s which are primarily related to scheduling.

Interim Decision [2013 HRTO 1362](https://www.minicounsel.ca/hrto/2013/1362), August 8, 2013

6The Application was initially deferred by the Tribunal by Interim Decision 2013 HRTO 1362 dated August 8, 2013, pending the outcome of a grievance dated April 29, 2013 which had been referred to arbitration. The grievance alleged discriminatory treatment with respect to the applicant’s return to work and a failure to accommodate.

Interim Decision [2013 HRTO 1778](https://www.minicounsel.ca/hrto/2013/1778), October 22, 2013

7In 2013 HRTO 1778 dated October 22, 2013, the Tribunal reactivated the Application on the basis that the grievance had been settled and was therefore no longer proceeding. The Tribunal indicated that the respondent’s request for a summary hearing and dismissal pursuant to section 45.1, as well as the applicant’s request to amend the Application, would be considered by the Tribunal and new directions would be issued.

Case Assessment Direction November 7, 2013

8This Case Assessment Direction indicates that the applicant’s request to amend is unclear. The Tribunal denied the respondent’s request for a summary hearing and directed that a conference call would take place to hear submissions and case manage the outstanding requests.

Interim Decision [2014 HRTO 625](https://www.minicounsel.ca/hrto/2014/625), May 1, 2014

9In 2014 HRTO 625 dated May 1, 2014; the Tribunal dismissed a portion of the Application pursuant to section 45.1 of the Code, removed a personal respondent, ordered further particulars and declined to add the union as a party.

10The Tribunal made a number of findings prior to disposing part of the Application. The applicant alleged that she had been obstructed from going back to work when she was fit and ready to do so. The union filed two grievances on behalf of the applicant (April 29, 2013 and July 4, 2013) requesting that the applicant be permitted to return to work in the position she held before going on leave.

11The grievances were settled. The Tribunal found that prior to the signing of the Minutes of Settlement the applicant tried to have a paragraph inserted in the Minutes which would preserve her right to proceed with the same allegations before the Tribunal. The union sent a letter to the applicant’s counsel setting out the union’s refusal to this proposal.

12The applicant argued that the settlement did not deal with the substance of the allegations of discrimination relating to her return to work. However, the Tribunal found that when the Minutes are read in conjunction with the union’s letter to the applicant’s counsel, it is “abundantly clear” that the applicant and the parties intended that the settlement would also dispose of these allegations before the Tribunal. The Tribunal found that the applicant ultimately acceded to the union’s refusal. Accordingly, the Tribunal found that the allegations related to the applicant’s return to work were dealt with appropriately in the grievance proceeding and dismissed this portion of the Application.

13With respect to the allegations of harassment from July to November 2012, the respondent argued that they were the subject of a separate grievance dated August 8, 2012. The respondent argued that this grievance was withdrawn with the applicant’s consent, and in consideration for the withdrawal, the organizational respondent agreed to organize a team-building and education session on harassment and bullying in the workplace.

14These allegations were not dismissed. Instead, the Tribunal ordered the applicant to provide particulars to support her allegations of discrimination in relation to the period from July to November, 2012. She was also ordered to provide particulars of the reprisal allegations covering the period after her return to work on July 4, 2013.

15The Tribunal also made the following observations as it relates to the remaining allegations which I have been asked to determine:

• The union filed a grievance on August 8, 2012 which alleges that the managers of the organizational respondent failed to protect the applicant form harassment;

• The nature of the harassment was not specified in the grievance and because the applicant had not clarified her pleadings, it was not possible to say whether the grievance was aimed at addressing Code-related issues or not;

• The union withdrew the grievance by a letter dated July 17, 2013. It states:

After a meeting on July 3, 2013 between the Grievor, Ms. Tammy May, the Union, Suzanne Dunphy-Snow, and Management, Karie 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.

• There are no Minutes of Settlement and no indication of the impact of this withdrawal on any other pending process;

• The applicant signalled her disagreement with the decision to withdraw the grievance after the fact;

• The organizational respondent has notes of the meeting which it claims contradict the applicant’s contention that she disagreed with the resolution of the grievance at the July 3 meeting;

• At this stage it is not necessary to determine whether the grievance and its subsequent withdrawal constituted a proceeding within the meaning of section 45.1 because it is not clear whether the grievance appropriately dealt with the substance of the allegations of discrimination in the period from July – November of 2012. The reason that this is difficult to determine is that the applicant has not provided particulars regarding these allegations;

• It is not fair to the respondents that they cannot advance a defence – in this case a request for dismissal pursuant to section 45.1 – because the applicant’s pleadings lack enough particulars for anyone to be able to determine whether the section applies or not;

Case Assessment Direction, May 27, 2014

16In this CAD, the Tribunal indicated that the applicant had now filed particulars in accordance with the Tribunal’s directions. The respondent was given an opportunity to indicate whether it intended to pursue the outstanding section 45.1 issue related to the harassment allegations spanning July to November 2012. The respondent renewed its request to dismiss these allegations.

Interim Decision [2014 HRTO 1204](https://www.minicounsel.ca/hrto/2014/1204), August 11, 2014

17This Interim Decision was released on August 11, 2014. The Tribunal reviewed the applicant’s particulars. The applicant’s request to amend the Application to add reprisal allegations was granted. The Tribunal determined that the allegations that the applicant was disciplined excessively by being suspended on November 5, 2012 and that she was harassed upon her return to work, as well as the events which are alleged to have taken place on and after August 8, 2013 would proceed to hearing.

18The Tribunal also issued directions in relation to the allegations which are now before me. The Tribunal noted:

• The particulars provided by the applicant in relation to the period from July 28 to November 5, 2012, 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. The applicant 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;

• The respondent requests dismissal of these allegations pursuant to section 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 organize a team-building and education session on harassment and bullying in the workplace.

19The Tribunal also cited the text of the letter dated July 17, 2013 from the union withdrawing the grievance.

20The Tribunal directed that a date would be set for oral submissions by teleconference on the section 45.1 issue and that no witnesses would give evidence during the call.

21Apart from the section 45.1 issue, the respondent sought to have the allegations associated with this time period dismissed for no reasonable prospect of success. This request was denied by the Tribunal without reasons.

Analysis

22Section 45.1 requires the Tribunal to consider not just whether a prior proceeding has dealt with the allegations which are the subject of the Applicant, but to determine that those allegations have been appropriately dealt with.

23When the Tribunal dealt with the applicant’s return to work allegations, the Tribunal found that there was clear evidence on the face of the record to conclude that the settlement was made with prejudice to the applicant raising the same allegations before this Tribunal. The Tribunal found that the scope of the settlement was clearly defined in the Minutes signed by both parties to the grievance and the applicant. The Tribunal also found that it was abundantly clear that the applicant and the parties intended that the settlement would dispose of these allegations before the Tribunal. The applicant sought to have her human rights allegations exempted from the scope of the settlement which the union refused. The Tribunal found that in signing the Minutes of Settlement she had acceded to that refusal.

24With respect to the harassment allegations from July to November 2012, the applicant argues that the grievance of August 8, 2012 could not have dealt with allegations arising after the date of the filing of the grievance. The applicant also alleges that she was not consulted on the Union decision to withdraw the grievance. She further alleges that she told the union on July 17, 2013, the date the grievance was withdrawn, that she did not agree to withdraw the grievance. The respondent argues that the applicant agreed to the resolution and has put the applicant’s credibility in issue.

25The fact that further allegations of harassment arose after the August 8, 2012 grievance does not preclude a finding that harassment allegations arising after that date have been appropriately dealt with. This is particularly the case where the subsequent incidents are similar in nature to the ones which preceded the grievance, and there is clear evidence that the resolution was meant to encompass all of the allegations.

26However, unlike the return to work grievance proceeding, there is little evidence to draw on from the face of the record which would lead me to a determination that the harassment allegations have been appropriately dealt with by the August 8, 2012 grievance and the resolution. Most notable is the fact that there are no signed Minutes of Settlement which establish the scope of the allegations, what the resolution was designed to address, and the implications for the applicant’s human rights application. Even assuming that the allegations addressed by the resolution of the grievance are substantially the same as those advanced by the applicant in this proceeding, there is a dispute over the extent of the applicant’s involvement in and agreement with the resolution. That issue cannot be resolved without hearing evidence and making findings of credibility.

27As a result, I cannot conclude at this time that the harassment allegations spanning the period from July to November, 2012, have been appropriately dealt with.

ORDER

28The Tribunal makes the following Orders:

• The request to dismiss the harassment allegations spanning the period July to November 2012 is dismissed;

• The respondent will have 30 days from the date of this Interim Decision to file an amended response in relation to the applicant’s particulars;

• The applicant will have 10 days from the date of the filing of an amended response to file an amended reply;

• The Application will be set for a 3 day hearing;

• The Notice of Hearing will include the dates for filing Rule 16 and 17 materials as well as a date and time for a 1 hour Case Management teleconference to take place within 1 week of the last Rule 16 and 17 filing date.