HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

William George Thomson

Applicant

-and-

Ontario Secondary School Teachers’ Federation and

Ontario Labour Relations Board

Respondents

INTERIM decision

Adjudicator: Ena Chadha

Date: November 14, 2008

Citation: 2008 HRTO 269

Indexed as: Thomson v. Ontario Secondary School Teachers’ Federation

Human Rights Tribunal of Ontario

655 Bay Street, 14^th Floor

Toronto ON M7A 2A3

Phone 416-326-1312 / 1-866-598-0322 / Fax 416-326-2199 / Toll Free1-866-355-6099

TTY 416- 314-2379 / 1-800-424-1168

E-mail hrto.registrar@ontario.ca

Website www.hrto.ca

1This is an Application filed by William George Thomson (“applicant”) on June 23, 2008 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The respondents are the Ontario Secondary School Teachers’ Federation (“OSSTF”) and the Ontario Labour Relations Board (“OLRB”).

2Pursuant to section 45.1 of the Code, both respondents have requested that the Application be dismissed on a preliminary basis because the substance of the Application was, in whole or in part, appropriately dealt with by other proceedings, namely a grievance arbitration and a duty of fair representation complaint. In addition, the OSSTF alleges that the substance of the Application was also appropriately dealt with by the Ontario Human Rights Commission under section 34(1) of the predecessor Code.

3The OLRB further seeks that the Application be dismissed because of an alleged lack of timeliness and also alleges that this Tribunal does not have jurisdiction over the OLRB’s adjudicative decisions.

4section 45.1 of the Code provides:

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.

Rule 22 of the Tribunal’s Rules of Procedure provides:

22.1 The Tribunal may dismiss part or all of the Application where it determines, under section 45.1 of the Code, that another proceeding has appropriately dealt with the substance of part or all of an Application.

22.2 The parties will have the opportunity to make oral submissions before the Tribunal dismisses an Application under Rule 22.1.

5Accordingly, unless parties consent to waive their right to oral submissions, the parties are entitled to an opportunity to make oral submissions before the Tribunal regarding the respondents’ requests to dismiss. The Registrar is directed to schedule the hearing to determine these preliminary issues. This direction is subject to the following Order:

(a) In light of the accommodation concerns identified in the Application and Reply, the applicant is directed to communicate in writing with the Registrar and the respondents, within 14 days of this decision, and advise whether or not he wishes the hearing into these preliminary issues to proceed by way of conference call, in-person, in writing or by some combination thereof.

(b) Within 7 days of receipt of the complainant’s notification, the respondents are directed to advise the applicant and the Registrar as to whether or not they consent to the applicant’s proposed method of proceeding.

(c) The Registrar will consider the parties’ submissions and schedule the hearing in accordance with the Tribunal’s Policy on Accessibility and Accommodation.

6At the hearing, the parties should be prepared to address submissions and, if necessary, provide evidence on the following issues:

(i) Should the Tribunal dismiss the Application, pursuant to section 45.1, because the substance of the Application has been appropriately dealt with by any of the following: Ontario Human Rights Commission, Grievance Arbitration or OLRB?

(ii) Is this Application made within one year after the last discriminatory incident as required by section 34(1)? If not, was the delay incurred in good faith and is there any substantial prejudice to any person affected by the Application if the Tribunal exercises its discretion to accept the Application pursuant to section 34(2)?

7If the parties wish to rely on any supporting material for the purposes of the hearing of these preliminary issues (including submissions, facts or case law not already provided in the Application, Responses and Reply), the parties are directed to deliver this material to each other, and to the Tribunal, by no later than two weeks before the date scheduled for the hearing.

[8] Pursuant to Rule 1.7(g), the Tribunal may determine and direct the order in which issues in a proceeding will be considered and determined, including issues put forth by a party as preliminary. In addition, I find the fair, just and expeditious hearing of this Application does not require the Tribunal to consider the OLRB’s arguments respecting the scope of section 1 and its applicability to adjudicative decisions at this stage of the proceeding.

9I am not seized of this matter.