Arias v. Centre for Spanish Speaking Peoples, 2008 HRTO 132

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Margarita Arias

Applicant

-and-

Centre for Spanish Speaking Peoples, and

Ontario Public Service Employees Union, Local 512

Respondents

INTERIM DECISION

Adjudicator: Michael Gottheil

Date: October 7, 2008

Citation: 2008 HRTO 132

Indexed as: Arias v. Centre for Spanish Speaking Peoples

Human Rights Tribunal of Ontario 655 Bay Street, 14^th Floor Toronto ON M7A 2C7 Phone (416) 326-1312 / 1-866-598-0322 Fax (416) 326-2199 / 1-866-355-6099 TTY (416) 314-2379 / 1-800-424-1168 E-mail hrto.registrar@ontario.ca Website www.hrto.ca

1This is an application filed July 29, 2008 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”). The Application alleges discrimination in employment based on age and reprisal. Both respondents have requested the Tribunal defer dealing with this application pending determination by the Ontario Labour Relations Board (“the OLRB”) of a Duty of Fair Representation complaint filed by the applicant.

2The Ontario Public Service Employees Union Local 512 (“the Union”) filed a complete response to the Application which included the request that the Application be deferred, but also submitted that the Application should be dismissed because it did not raise a prima facie case of discrimination under the Code. The Centre for Spanish Speaking Peoples (“the employer”) did not file a complete response, but requested that this Application be deferred.

3While the facts supporting this Application are substantially the same as the facts relied upon in the Duty of Fair Representation complaint before the OLRB, it is not clear that deferral is the most fair, just and expeditious way of resolving this Application.

4First, as the Union has submitted, it is not clear how the Application discloses a prima facie case of discrimination under the Code. In other words, even if all of the facts contained in the Application are assumed to be true, it is not clear that a violation of the Code is established. This is particularly so in relation to the claim against the Union.

5In her application, the applicant requests that she be provided disability benefits. She claims that both the Union and the employer have undermined her efforts to apply for and receive disability benefits. She also claims that she was forced to go on sick leave because of a poisoned work environment created by tensions between management and the Union. The only allegation related to age is that she was told on one occasion that training opportunities were available only for new employees. There do not appear to be any allegations that she suffered reprisal as a result of attempting to enforce rights under the Code. The Tribunal does not have the general power to resolve employment disputes. Its authority is limited to dealing with claims of discrimination under the Code.

6Second, even if the Application does raise allegations that the Code has been violated, it is not clear that the OLRB Duty of Fair Representation proceeding will deal with the same issues as those before the Tribunal. Deferral of an application ensures that proceedings dealing with the same issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law. Deferral is not automatically invoked simply because the parties are involved in other legal proceedings.

7Having said this, I am not prepared to make a determination on the respondents’ request to defer, or the Union’s request to dismiss, without hearing oral submissions from the parties. As a result, the Tribunal will schedule a hearing to address the following issues:

a. Whether and how the facts of this Application, even if assumed to be true, could establish a violation of the Code by either the employer or the Union;

b. If the Tribunal is satisfied that the facts of the Application could establish a breach of the Code, whether it is appropriate to defer the Application pending the outcome of the OLRB proceedings.

8In order to ensure that the parties have a full opportunity to address these issues, the Tribunal makes the following directions:

a. No later than 20 days from the date of this decision, the employer will file a complete response to the Application, and at the same time deliver a copy to the applicant and the Union.

b. Within 20 days of receipt of the employer’s response, the applicant shall file with the Tribunal and deliver to the other parties, a reply which must include any additional facts she wishes to rely upon in support of her claim that the employer and the Union have violated the Code;

c. No later than 14 days prior to the hearing, all parties shall file with the Tribunal, and deliver to the other parties, copies of all documents they will rely upon at the hearing of the issues identified above.

9Because the hearing will deal only with the question of whether there is a prima facie case of discrimination, (and if so, whether the matter should be deferred) there is no need to hear from witnesses. The questions will be decided assuming all of the facts alleged by the applicant are true.

10The applicant should note that if the Tribunal determines that the facts of the Application, even if true, could not establish a violation of the Code, the Application will be dismissed. The Tribunal draws the applicant’s attention to the “Applicant’s Guide” and in particular to sources of legal assistance and representation available to applicants, including support that may be available through the Human Rights Legal Support Centre. The Guide and links to other sources of information are available on the Tribunal’s website, www.hrto.ca, or from the Registrar whose contact information is contained on the cover page of this decision.

11This matter is referred to the Registrar to schedule a one day hearing.