TO THE RESPONDENTS

A LEGAL PROCEEDING HAS BEEN COMMENCED by the Applicant. The claim made by the applicant appears on the following pages.

THIS APPLICATION FOR JUDICIAL REVIEW will come on for a hearing before the Divisional Court on a date to be set by the Registrar at Osgoode Hall, 130 Queen Street West, Toronto.

IF YOU WISH TO OPPOSE THIS APPLICATION, you or an Ontario lawyer acting for you must forthwith prepare a Notice of Appearance in Form 38C prescribed by the Rules of Civil Procedure, serve it on the Applicant(s), the Applicant(s) lawyer(s) or, where the Applicant(s) do(es) not have a lawyer, serve it on the Applicant(s), and file it, with proof of service, in the Divisional Court office, and you or your lawyer(s) must appear at the hearing.

IF YOU WISH TO PRESENT AFFIDAVIT OR OTHER DOCUMENTARY EVIDENCE TO THE COURT OR TO EXAMINE OR CROSS-EXAMINE WITNESSES ON THE APPLICATION, you or your lawyer(s) must, in addition to serving your Notice of Appearance, serve a copy of the evidence on the applicants, lawyer(s) or, where the Applicant(s) do(es) not have a lawyer, serve it on the Applicant(s), and file it, with proof of service, in the Divisional Court within 30 days after service on you of the Applicant's Application Record, or not later than 2:00 p.m. on the day before the hearing, whichever is earlier.

IF YOU FAIL TO APPEAR AT THE HEARING, JUDGMENT MAY BE GIVEN IN YOUR ABSENCE AND WITHOUT FURTHER NOTICE TO YOU. If you wish to oppose this application but are unable to pay legal fees, legal aid may be available to you by contacting a local Legal Aid office.

Date-, February 7, 1997 Issued by

Address of court office:

130 Queen Street West

Toronto, Ontario

M5H 2N7

TO: STRINGER BRISBIN HUMPHREY

Management Lawyers

Suite 1100

110 Yonge Street

Toronto, Ontario

M5C lT4

Tel: (416) 862-1616

Fax: (416) 363-7368

Cheryl A. Edwards

Solicitors for the Respondent

MERIDIAN MAGNESIUM PRODUCTS LIMITED

AND TO.- ONTARIO LABOUR RELATIONS BOARD

400 University Avenue

Toronto, Ontario

M7A 1V4

Tel: (416) 326-7500

Fax: (416) 326-7531

Respondent

1 The Applicant makes an application for:

(i) an Order quashing the decision of R.0. MacDowell, Chair of the Ontario Labour Relations Board, dated December 17, 1996, not to inquire into the Applicant's complaint and dismissing it;

(ii) an Order in the nature of mandamus requiring the Ontario Labour Relations Board to properly consider and exercise its jurisdiction in reaching a conclusion as to the merits of the Applicant's complaint filed with the Ontario Labour Relations Board,

(iii) costs of this Application.

(iv) such further and other relief as this Honourable Court may deem just;

2. The grounds for the application are:

(i) Section 2 of the Judicial Review ProceduresAct;

(ii) the Board erred in law and exceeded its jurisdiction in deciding not to inquire into the Applicant's complaint by failing to give the statutory provisions contained therein and in particular Sections 25, 27, 28 and 50 of the Occupational Health and Safety Act their plain and ordinary meaning in determining whether or not the jurisdiction of the Ontario Labour Relations Board should be exercised in favour of dealing with the complaint.

(iii) the Board erred in law and exceeded its jurisdiction in concluding that gender discrimination and sexual harassment including reprisals notwithstanding the fact that they could constitute workplace hazards as defined by the Occupational Health and Safety Act, should in all instances result in the Board declining jurisdiction in favour of the Ontario Human Rights Commission;

(iv) the Board erred in law and exceeded its jurisdiction in failing to give decisive weight to the practical difficulties which the Labour Board might face in having safety inspectors investigate allegations of sexual harassment but in failing to give decisive weight to the fact that the Applicant may face the prospect of not getting any remedy at all from the Human Rights Commission in determining whether or not to hear her complaint;

(v) the Board erred in law and exceeded its jurisdiction in deferring the complaint of the Applicant to the Human Rights Commission where legitimate Health and Safety Act concerns were raised by the Applicant's complaint which the Board is more able and suited to remedy then the Ontario Human Rights Commission;

(vi) the Ontario Labour Relations Board erred in law and exceeded its jurisdiction in concluding that sexual harassment and gender discrimination are more central to the jurisdiction and expertise of the tribunals established under the Human Rights Code than to the panels established under the Ontario Labour Relations Act when such conduct poses a clear danger to the health of women in the workplace;

(vii) the Board erred in law and exceeded its jurisdiction in concluding that the Commission was too slow when in fact the Commission does not exercise its jurisdiction at all;

(viii) the learned Board erred in law and exceeded its jurisdiction in concluding that the jurisdiction of the Human Rights Commission is clearer than that of the Occupational Health and Safety Act;

(ix) the learned Board erred in law and exceeded its jurisdiction in failing to follow the jurisprudence developed by the Workers' Compensation Appeals Tribunal which explicitly has found that sexual harassment in the workplace can lead to compensable psychological trauma and disability and has an injurious impact comparable to that of an accident or industrial disease;

(x) the Board erred in law and exceeded its jurisdiction in failing to recognize that in some respects the Occupational Health and Safety Act was more suited to dealing with issues of gender discrimination and sexual harassment than the Ontario Human Rights Code including its onus provisions, the speed with which the Complaint is dealt with, the likelihood that the complaint would be heard, the emphasis on remedial action rather than conciliation and the expertise of the Board in workplace hazards;

(xi) the learned Board erred in law and exceeded its jurisdiction in basing its analysis on a secondary issue; namely, whether sexual harassment was a workplace hazard when the primary issue was whether or not workers seeking to protect themselves against such harassment can avail themselves of the prohibition of reprisal conduct for perceived sexual harassment;

(xii) the Board erred in law and exceeded its jurisdiction in making a decision that was not consonant with the statutory recognition of a broader jurisdiction upon arbitrators and industrial relations tribunals to apply human rights standards in their adjudicative functions;

(xiii) the Board erred in law and exceeded its jurisdiction in concluding that it would be generating a layer of litigation by assuming jurisdiction in the instant case when it would simply be assuming its existing jurisdiction;

(xiv) the Board erred in law and exceeded its jurisdiction in adopting a unnecessarily narrow, ideological interpretation which failed to see that sexual harassment was as destructive to a woman's health and safety as it was to her human rights;

(xv) the Board erred in law and exceeded its jurisdiction in failing to consider that legal remedies such as issue estoppel and res judicate are routinely applied in instances of dual jurisdiction to ensure that the same matters are not litigated twice;

(xvi) the Board erred in law and exceeded its jurisdiction in exercising its jurisdiction not to hear the Applicant's complaint when in the instant case, the Applicant had chosen to pursue her complaint under s.50 of the- Occupational Health and Safety Act rather than pursuant to the Human Rights Code;

(xvii) the Board erred in law and exceeded its jurisdiction in deciding to defer the Applicant's complaint when the complaint could have been successful notwithstanding the finding that sexual harassment was not a hazard readily falling within the ambit of the Occupational Health and Safety Act,

(xviii) the Board erred in law and exceeded its jurisdiction in taking an unnecessarily narrow approach to the broad wording of the Occupational Health and Safety Act with respect to the categories of situations which could constitute a workplace hazard and by attempting to unnecessarily restrict such categories to non-behavioral and physical hazards;

(xiv) the Board erred in law and exceeded its jurisdiction in misapprehending what facts constituted reprisal in the pleadings before it and in failing to consider evidence that the Applicant had sought the protection of and complied with the Occupational Health and Safety Act.

3. The following documentary evidence will be used at the hearing of the

Application:

(a) the Affidavit of Patricia Musty, to be filed;

(b) the Record of Proceedings before the Ontario Labour Relations Board;

(c) the pleadings and proceedings herein;

(d) such further and other material as counsel may advise and this Honourable Court may permit.

Date of issue. February 7, 1997

PATRICIA MUSTY

Applicant in Person

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