Thomas v. Ideal Child Care Services Group, 2016 HRTO 210

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Catherina Thomas

Applicant

-and-

Ideal Child Care Services Group and Sandra Ditta

Respondents

-and-

Canadian Union of Public Employees and its Local 2484

Intervenor

INTERIM DECISION

Adjudicator: Naomi Overend

Date: February 17, 2016

Citation: 2016 HRTO 210

Indexed as: Thomas v. Ideal Child Care Services Group

WRITTEN SUBMISSIONS

Catherina Thomas, Applicant

No one appearing

Ideal Childcare Services and Sandra Ditta, Respondents

J. Paul Wearing, Counsel

1This Interim Decision addresses the respondents’ request to dismiss the Application under s. 45.1 of the Human Rights Code, R.S.O. 1990 c. H. 19, as amended (the “Code”).

background

2The applicant filed her Application on May 24, 2013, alleging discrimination in employment on the basis of age contrary to the Code. On and around that date, the applicant also filed grievances concerning the alleged conduct that gave rise to her Application. On September 3, 2013, the Tribunal deferred the Application pending the resolution of the proceedings relating to these grievances.

3The applicant sought to reactivate her Application in November 2015. The respondents did not object, and by Registrar’s letter, dated December 14, 2015, the Application was reactivated. The respondents were also directed to file a Response. This Response requested the Applications be dismissed under s. 45.1. The applicant was advised specifically of this request, and directed to file a Reply including submissions on this request, by February 2, 2016. The applicant has failed to file submissions and the time for doing so has now passed.

Decision and Analysis

4The respondent requests that the Tribunal dismiss the Application under s. 45. 1 of the Code. It submits that the grievance proceedings and an internal investigation appropriately dealt with the substance of the Application.

5Section 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.

6The respondents have provided three arbitration decisions. The first of these decisions, an Interim Award by Arbitrator Paul Craven dated September 24, 2014, dismisses three of the applicant’s grievances on the basis that they are not arbitrable. The remaining two are Awards by Arbitrator Peter Chauvin. The first, dated February 3, 2015, finds that a further grievance is moot on the basis that the warning letters at issue in the grievance were required to be expunged from the grievor’s file pursuant to the terms of the Collective Agreement. The second Award, dated September 24, 2015, interprets what is meant by the term “expunged.”

7In the February 3, 2015 Award, Arbitrator Chauvin notes at paragraph 13:

The Union raised a concern that its allegation regarding harassment that it raised in its May 24, 2013 Grievance is also not being arbitrated. That is true. However, this Award does not prevent the Union from bringing any grievance in the future, should the Union believe that the Grievor is being harassed by the Employer.

8The respondents acknowledge in their Response that the harassment allegations were not actually addressed in any of the grievance proceedings, but submit that they were addressed in the investigation of the applicant’s May 1, 2013 workplace harassment complaint. However, the Tribunal has held that an internal investigation is generally not a “proceeding” within the meaning of s. 45.1. See O’Brien v. Kingston (City), 2014 HRTO 678.

9In summary, I have found that the grievances did not address the substance of the Applications, and the internal investigation is not a proceeding within the meaning of s. 45.1 of the Code.

ORDER

10The respondent’s Request to dismiss is denied. Since both parties have agreed to mediation, the Registrar will schedule a mediation in this file.