Woolcock v. Kaiser Aluminum Canada, 2016 HRTO 1313

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Melissa Woolcock Applicant

-and-

Kaiser Aluminum Canada Respondent

INTERIM DECISION

Adjudicator: Dawn J. Kershaw Date: October 12, 2016 Citation: 2016 HRTO 1313 Indexed as: Woolcock v. Kaiser Aluminum Canada

APPEARANCES

Melissa Woolcock, Applicant Stephanie Shreve, Representative

Kaiser Aluminum Canada, Respondent Daniel Leone, Counsel

United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, Local 4885, Intervenor Katrina Peddle, Counsel

Introduction

1The applicant filed an Application on October 18, 2013, alleging that the respondent discriminated and reprised against her in employment contrary to the Human Rights Code, R.S.O. 1990 c. H. 19, as amended (the “Code”).

2The respondent has employed the applicant since December, 1994. In her Application, the applicant alleges reprisal and discrimination on the basis of sex and disability. She alleges reprisal in respect of her right to be absent from work, the respondent’s failure to take her disability into account when she was absent and the respondent’s failure to protect her from harassment, specifically from other employees’ comments that she was not disabled and was a malingerer. She also alleges the respondent discriminated against her by failing to properly accommodate her after an injury in 2012 by placing her in inappropriate jobs and rushing her return to work.

3The applicant also refers to other alleged incidents of discrimination including having to work until 3:30 p.m. when pregnant even though other pregnant women only had to work until 3 p.m.; being threatened with being sent home when a co-worker made false accusations against her; being intimidated into going back to work after a break while others remained on break; being forced to see a company doctor; and being threatened with termination once the respondent knew of the applicant’s anxiety and depression.

Background

4The Application was deferred on January 21, 2014 because of outstanding grievances. The arbitrator rendered his decision with respect to the grievances on October 3, 2015.

5The Application then was reactivated in Interim Decision, 2016 HRTO 110, in which the Tribunal also directed that a preliminary hearing be held to address whether the Application should be dismissed in accordance with s. 45.1 of the Code on the basis that the issues in the Application were appropriately dealt with in the arbitrator’s decision. The Tribunal granted the applicant’s union status as a temporary intervenor for the purposes of participating in the preliminary hearing.

6Section 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.

7The arbitrator heard three grievances: an April 3, 2013 accommodation grievance, JML 10-10-13, a May 3, 2012 harassment grievance, JML-07-12 and a termination grievance, which the parties agreed was not relevant to this preliminary hearing. The applicant takes the position that her allegations of harassment between 1996 and 2013 were not appropriately dealt with by the arbitrator.

8The May 3, 2012 grievance states:

I have a grievance because the company is harassing me regarding my medical absences from work. The company is aware that I suffer from a disability and I therefore require accommodation. I view the company harassment as a form of discrimination.

9The April 3, 2013 grievance states:

Will not accommodate me due to health issues.

Arbitrator’s Decision

10The grievances ultimately were heard as a mediation/arbitration. The arbitrator met with the union and applicant separately from the respondent. Both sides entered sworn and documentary testimony.

11The arbitrator reviewed the applicant’s work history, noting that early on she spent a lot of time in the Press area where she strained her back in 2007. The arbitrator then stated, without specifying dates:

A few incidents occurred with co-workers and she found the Employer actions [sic] to be inadequate. She says that anxiety developed and, following a further incident with a co-worker, she had a nervous breakdown and went on STD. During this general period a number of harassment grievances were filed on her behalf.

12He also stated the applicant told him systemic harassment, largely by D.D., led to her not wanting to work in the Press area.

13The arbitrator reviewed the applicant’s medical history from November, 2012 to November, 2014.

14He reviewed the union’s evidence and specifically referred to the applicant’s request for accommodation in December, 2012 and into 2013, and to her interactions with D.D. and Cindy in 2013 during her request for accommodation. He also detailed the applicant’s interactions with her union and the respondent throughout 2014 and into 2015 when the respondent terminated her.

15The arbitrator concluded:

The harassment grievance is dismissed. Quite properly, the Employer enforced its attendance policy and medical report rules. If her reaction was to consider this to be adding to her anxiety, there is no evidence the Employer people targeted her for that reason.

He went on to state:

Various comments by Dianne [sic] and allegedly Cindy show a certain degree of frustration as to W’s [the applicant’s] attendance and disputes. I do not think they go beyond fair comment, however, and they do not amount to harassment individually or in bulk.

16The arbitrator also overturned the applicant’s termination, concluded she should be accommodated by not having to work in the Press area, and awarded her back pay from November 27, 2014 to January 13, 2015 and from September 15, 2015.

Applicant’s Position

17The applicant articulated her position at this hearing as being that despite the fact that the arbitrator addressed her absences due to her disability between 2012 and 2015, he did not address any of her harassment allegations between 1996 and 2012. These include the respondent harassing the applicant on the basis of her disability with respect to her daily assignments and failing to accommodate the applicant during pregnancy and to take action to prevent the harassment of the applicant by her co-workers.

18More specifically, she submits that the arbitrator did not address her allegation that her disability was exacerbated by the harassment she experienced throughout her employment. This began with harassment on the basis of her sex (specifically pregnancy) in 1996 and included an incident in 2007 when she was allegedly falsely accused of stalking another employee in the Press area which led her to feel unsafe working in that area, but being assigned to work there in any event.

19The applicant submits that the arbitrator referred only vaguely to these earlier allegations of harassment at page 2, paragraph 5 of his decision:

She suffered a number of difficult personal events as well as a few issues with co-workers which she did not feel were handled properly by her Employer.

20She further submits that although the arbitrator referred to at least two foremen who caused the applicant problems, he did not elaborate even though it was these allegations that went to the root of the harassment allegations set out in the Application. The arbitrator stated at page 3, paragraph 3:

She [the applicant] says that she had lifting restrictions that management ignored and that at least two foremen caused her problems.

21The applicant also submits she was not given a full opportunity to present her case because her union chose how to frame the issues, had only the applicant give evidence and may have had different interests than the applicant because of the involvement of other employees. The applicant submits it would be unfair to use the arbitration decision to conclude this Application.

Respondent’s Position

22The respondent argues the parties agreed, and the applicant consented, that the arbitrator would conduct the arbitration by hearing their evidence separately. Once the arbitrator was satisfied he had all the facts, he would go away and render a decision.

23The arbitrator spent half a day with the respondent and 1 ½ days with the applicant. The respondent submits it is disingenuous of the applicant to say she did not have the opportunity to fully present her case.

24The respondent submits the applicant must have told the arbitrator about her 1996 pregnancy because the arbitrator raised it with the respondent. In any event, this allegation and the allegation that a co-worker harassed her in 2007 are out of time because the Application was not filed until 2013.

25In the respondent’s view, the arbitrator had jurisdiction over the harassment grievance, and gave the applicant a chance to make submissions. It disagrees with the applicant’s position that she did not have a full opportunity to present her case because the union controlled the process. It submits that on the contrary, the applicant had 1 ½ days to present her evidence to the arbitrator.

26The respondent concedes the arbitrator’s decision could have set out more precisely each of the issues before him, but despite this, the harassment issues were before the arbitrator, the parties led evidence about those issues and the arbitrator concluded there was no merit to the applicant’s harassment complaints. As a result, the arbitrator appropriately dealt with the substance of the Application.

27The respondent submits the applicant clearly disagrees with the outcome of the arbitrator’s decision, which would properly constitute an appeal of that decision. In accordance with the Court in British Columbia (Worker’s Compensation Board) v. Figliola, 2011 SCC 52, [2011] 3 S.C.R. 422 (“Figliola”), there should be finality and not a multiplicity of proceedings.

Union’s Submissions

28The union supports the respondent’s position. Ms. Peddle, the applicant’s union representative, was present throughout the arbitration and submits that the applicant gave evidence with respect to allegations of harassment as far back as 1994, including with respect to her pregnancy and those involving the foremen and Darlene Duval. The union submits the arbitrator’s decision refers to events as far back as 2004.

29The union further agrees with the respondent that once the arbitrator made his decision, which included an award of damages, the applicant did not request an appeal of his decision.

30The union further asserts the applicant was not the only witness for her. The union president also gave evidence on her behalf.

31Finally, with respect to the fairness of the process, the applicant relied on very detailed notes when she testified. In addition, the parties arranged the arbitration hearing as they did to allow the applicant to give evidence without being subjected to cross-examination. She also had a support person with her, namely the vice-president of the union who is a friend of hers.

Applicant’s Reply Submissions

32The applicant points out that the arbitrator’s decision makes it apparent the arbitration was unfair because he confused the applicant’s physical and mental health limitations. Asked why she did not appeal the arbitrator’s decision in the face of this error, she stated the harassment allegations were more properly suited to the Tribunal, and an appeal would have been appropriate only if the applicant had been fully dissatisfied with the arbitrator’s decision. The applicant further submits the arbitrator did not have a full appreciation of how working in the Press area affected her mental health.

33When asked by the Tribunal about the fact she had 1 ½ days to give her evidence, the applicant submitted there were more than 50 incidents and her disability means she is not always able to focus.

34She submits the arbitrator dealt only with the harassment resulting from her absences, and did not mention her allegation of harassment related to her pregnancy and did not adequately deal with any of her harassment allegations prior to 2012.

35The applicant also argues that despite the finding in Figliola regarding the need for finality, the Court also states that the result must be just, and if is not, the Tribunal can exercise its jurisdiction and not dismiss the Application.

law and analysis

36This preliminary hearing was scheduled to deal with the application of section 45.1 of the Code. However, in her submissions the applicant took the position that in fact the arbitrator dealt with her allegations of harassment between 2012 and 2015, and it was the earlier allegations between 1996 and 2011 that the Tribunal should allow to proceed. The parties agree that the applicant’s allegations of discrimination between 2012 and 2015 were appropriately dealt with in the arbitrator’s decision.

37As such, the applicant’s allegations of discrimination between 2012 and 2015 are dismissed as they were appropriately dealt by the arbitrator.

38This leaves the applicant’s allegations from 1996 to 2011, which clearly were commenced outside the limitation period in section 34 of the Code, that states, in part:

(1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series.

(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

39Section 34(1) is a limitation period established under the Code. If an applicant seeks to rely on untimely allegations, the applicant must establish, pursuant to subsection 34(2) that the delay was incurred in good faith, otherwise the Tribunal has no jurisdiction to deal with the allegations. The Tribunal considered the meaning of good faith in Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241and stated at paras. 24 and 25:

In my view, where an applicant seeks to establish that a delay in filing an application was “incurred” in good faith, the applicant must show something more than simply an absence of bad faith. Otherwise, there would be little meaning to the statutory limitation period. The Code requires a person who wishes to pursue a claim of discrimination to bring the claim forward by filing an Application within one year of the alleged incident, or where there is a series of incidents, within one year of the date of the last incident. This is a mandatory provision, subject only to section 34(2). The mandatory one-year limitation period is consistent with the policy objective, expressed elsewhere in the Code, that human rights claims should be dealt with expeditiously. Thus, the Code requires an individual to act with all due diligence, and file their application within one year, when they may seek to pursue a human rights claim.

40In dealing with requests that applications be considered outside the one-year limitation period, the Tribunal has set a fairly high onus on applicants to provide a reasonable explanation for the delay, while recognizing that there will be legitimate circumstances, often related to the human rights claim itself, that justifies exercising the discretion under section 34(2). In Lutz v. Toronto (City), 2009 HRTO 1137 (“Lutz”), the Tribunal held that a delay may be found not to have been incurred in good faith where a party says simply that they were not aware of their rights, and made no inquiries about options for pursuing the alleged wrong.

41It is clear that the allegations of harassment the applicant requests be permitted to proceed are outside the Tribunal’s one year period for filing Applications.

42As such I must consider whether there is any good faith reason for the delay. If the parties wish to provide written submissions with respect to the issue of whether there are any good faith reasons for the delay, they may do so. See, for example Thomas v. Toronto Transit Commission, 2009 HRTO 1582 and see for example Diler v. Cambridge Memorial Hospital, 2010 HRTO 1224 for a discussion of “good faith”. The parties also will have an opportunity to make oral submissions by teleconference call.

Order and direction

43For the above reasons, the allegations of discrimination in the Application between 2012 and 2015 are dismissed.

44By no later than October 26, 2016, the applicant is directed to deliver to the respondent and file with the Tribunal along with a Form 23 Statement of Delivery any written submissions she wishes to make to address any good faith reason for the delay with respect to her allegations prior to 2012.

45By no later than November 8, 2016, the respondent is directed to deliver to the applicant and file with the Tribunal along with a Form 23 Statement of Delivery any responding submissions it wishes to with respect to the delay issue.

46By no later than November 22, 2016, the applicant is directed to deliver to the respondent and file with the Tribunal along with a Form 23 Statement of Delivery any reply submissions she wishes to with respect to the delay issue.

47The Registrar will schedule a half-day hearing by conference call. The parties will receive a notice of hearing, setting out the time, date and telephone numbers for the preliminary hearing. Although scheduled for a half-day, not all preliminary hearings require a half-day to complete. It will be up to the Vice-chair to determine the length of the hearing and how the hearing is conducted.