Brenda Pinder v. Toronto District School Board, 2009 HRTO 1354

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Brenda Pinder

Applicant

-and-

Toronto District School Board, Roger Dale, Kim Miller, and Sheila Penny

Respondents

AND B E T W E EN:

Brenda Pinder

Applicant

-and-

Ontario Secondary School Teachers Association, Marg McPhail and Tony D’Andrea

Respondents

INTERIM DECISION

Adjudicator: Kaye Joachim

Date: August 28, 2009

Citation: 2009 HRTO 1354

Indexed as: Pinder v. Toronto District School Board

1These are two Applications filed June 9,2009 respectively under section 53(5) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The respondents in TR-0449 (the “Employer Application”) made a Request for Order During Proceedings seeking to remove the personal respondents, to dismiss or defer the Employer Application and to restrict the subject matter of the Application. The respondents in TR-0436-09 (the “Union Application”) made a Request for Order During Proceedings seeking to remove the personal respondents, to restrict the subject matter of the Application, to remove a privileged document, and to dismiss or defer the Union Application.

2The applicant has requested that the Employer Application and the Union Application be processed separately.

Background

3The applicant self-identifies as a person with multiple chemical sensitivity. She filed complaints against the employer and the union in March 2004 alleging that the they failed to accommodate her disability-related needs.

4A grievance was also filed on her behalf in respect of the same allegations and an arbitration commenced on January 19, 2005.

5The applicant, the employer and the union agreed to an accommodation plan, and signed minutes of settlement, resolving the grievance and the initial complaint against the employer. The applicant released the respondent employer from all claims as of April 18, 2005. The terms of the Minutes of Settlement were incorporated into an arbitration award by Arbitrator Paul Knopf. The parties agreed to be bound by the accommodation plan. The Arbitrator remained seized with regard to the implementation of the award.

6The applicant had concerns about the implementation of the accommodation plan and the parties returned to the Arbitrator on several occasions. Arbitrator Knopf issued decisions on July 22, 2008, January 5, 2009 and February 20, 2009.

7On July 12, 2007 the applicant filed a second complaint against the employer respondents, which forms the basis of the present Employer Application. The complaint alleges a continuing failure to abide by the terms of the June 2005 arbitration award, and thus, a continuing failure to accommodate the applicant.

Employer Application

8In my view, the issue of whether the accommodation plan and arbitration award are being followed is being actively dealt with by Arbitrator Knopf and it would be a duplication of resources to inquire into the post-2005 accommodation efforts by the employer.

9Accordingly, the Employer Application is deferred until such time as Arbitrator Knopf decides to cease supervision on the accommodation plan or otherwise indicates that she is no longer involved in this matter, or the parties to the Minutes of Settlement agree that they are no longer bound to use arbitration process.

Union Application

10The original complaint against the Union filed in March 2004 forms the subject matter of the present Union Application. The complaint asserts that respondents McPhail and D’Andrea failed to adequately represent her in her efforts to obtain effective accommodation of her chemical sensitivity and failed to initiate grievances on her behalf.

11The failure to represent an employee on a human rights matter is not, in and of itself, a breach of the Code, nor does it automatically make the Union a party to the alleged discrimination by the Employer. To found a claim against the Union, the applicant must provide a factual basis that could give rise to a finding that the Union itself discriminated against her.

12In a letter dated September 21, 2005 from the applicant’s lawyer to a Commission officer, the applicant stated that her complaint also encompassed the Union’s failure to implement a non-scent policy for union activities. However, the complaint was never amended to include this allegation at the Commission and I find that it would not be appropriate to permit the applicant to amend the Application at this time. However, as this aspect of the complaint does not form the subject of the present Application nothing in this decision would preclude the applicant from filing a new Application with respect to the Union’s no-scent policy.

13In her response to the request for dismissal by the Union, the applicant again attempts to expand the subject matter of her Application to include the post-June 2005 efforts of the Union to assist her in obtaining accommodation. I am not prepared to amend the Application to include post-June 2005 events.

14The Tribunal may not dismiss an Application within its jurisdiction without giving the parties the opportunity to make oral submissions. The Registrar-Transition will contact the parties to schedule a half-day hearing to hear oral submissions on whether the Union Application sets out facts which could found a finding of a breach of the Code.