Corbière v. University of Sudbury [2012] O.H.R.T.D. No. 288

 Can a tribunal hear a professor’s human rights allegations which reframe the same factual circumstances that formed the basis of grievances that were either resolved or settled?

Facts

 The applicant, Dr. Mary An Corbière, is an Aboriginal assistant professor with the Department of Native Studies at the University of Sudbury. Dr. Corbière filed a number of grievances against the university, all of which were settled or resolved in 2009.   The grievances dealt with the following issues:

 -          Denial of promotion to associate professor

• Issue:  Based on an “[unreasonable and arbitrary ]interpretation of the criterion regarding scholarly work”, the president of the University of Sudbury denied the applicant a promotion despite the recommendation of the Faculty Affairs committee
• Settlement:  The grievor’s immediate promotion to associate professor following the publication of a named work.

-          Teaching load

• Issue: After a sick leave, the professor was given a workload that she found to be unreasonable
• Settlement:  Relief in the form of the subtraction of one 6 credit course

-          Handling of Student Complaints

• Issue: The University placed a letter of reprimand fin the professor’s file for “uncooperativeness” in the wake of its attempt to handle student complaints against her.
• Resolution: The grievor agreed to drop the grievance when the University agreed to remove the letter from her file.

-          Deduction of overload pay

• Issue: The University deducted $500 from the grievor’s overload pay
• “Full and Complete Settlement”: The University reimbursed the grievor in full.

 In 2010, Professor Corbiere filed an application with the Tribunal against the University, the principal and the head of her department.  She presented six issues, four of which relate to the same factual circumstances of the four settled or resolved grievances but reframed through a human rights lens. The applicant acknowledged that these grievances had been heard and resolved/settled. However, she maintained that collective agreement issues were different from human rights issues, so she should have the right to file the human rights elements of those cases.     Two additional allegations within the application included an allegation of discrimination/harassment by the president as well as the change in criteria for eligibility for membership in the Board of Regents

Issue

Can the applicant allege that the settlement of her grievances did not address the human rights elements of her concerns?

Decision

Yes

Reasons

-          The Tribunal pointed out that it could hear a human rights allegation stemming from a settled grievance if and only if the grievor had been unaware that her grievance included human rights elements (Zu v Hamilton City at the time. In this case, the documentary evidence shows that Corbière was fully aware of the human rights elements of her case; she had taken steps to remedy them at the university. Her failure to include human rights concerns in the promotion and overload grievances does not now give her the right to file a human rights application. Moreover, the applicant was told that she could not use any incident related to the promotion grievance in her claim against the president. 

-          The Tribunal saw the human rights reframing of the work load issue as an abuse of process; it determined that the applicant was “now attempting to re-frame the same factual circumstances as a different allegation” especially since 1) she had no documentary evidence showing that the parties had not discussed the timing of the work load as part of the issue; and 2) she had not made any reference to “disability” in her application

-          The Tribunal pointed out that the applicant could have filed a human rights complaint if she had withdrawn from the grievance process due to dissatisfaction with that process. However, in this case, the applicant withdrew her grievance as part of a satisfactory resolution process resulting in the removal of the letter of reprimand from her file.