William Thomson v. Ontario Secondary School Teachers’ Federation and Ontario Labour Relations Board, 2009 HRTO 1568

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

William Thomson Applicant

-and-

Ontario Secondary School Teachers’ Federation and Ontario Labour Relations Board Respondents

interim decision

Adjudicator: Ena Chadha Date: September 28, 2009 Citation: 2009 HRTO 1568 Indexed as: Thomson v. Ontario Secondary School Teachers’ Federation

WRITTEN SUBMISSIONS BY

William Thomson, Applicant ) On his own behalf Ontario Secondary School Teachers’ Federation, Respondent ) Simon Blackstone, Representative Ontario Labour Relations Board, Respondent ) Leonard Marvy, Representative

BACKGROUND

Application Against OSSTF

1This Application was filed on June 23, 2008 under section 34 of Part IV of the Ontario 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”).

2The applicant alleges that he experienced discrimination on the basis of disability by the OSSTF in the area of membership in a vocational association contrary to section 6 of the Code. The applicant alleges that the OSSTF failed to accommodate his disability-related needs in handling his grievance arbitration.

Application Against OLRB

3The applicant alleges that he experienced discrimination on the basis of disability by the OLRB in the area of services contrary to section 1 of the Code. The applicant alleges that the OLRB failed to accommodate his disability-related needs when it terminated his OLRB proceeding.

Respondents’ Requests to Dismiss

4The respondents requested early dismissal on a number of bases and have taken the position that they are entitled to an oral proceeding in regards to some or all of these preliminary issues. The respondents seek early dismissal on the following bases:

(i) Both respondents allege the Application should be dismissed, in whole or in part, because the substance of the Application was appropriately dealt with by other proceedings, specifically the grievance arbitration process and duty of fair representation complaints;

(ii) Both respondents allege the Application should be dismissed because of delay;

(iii) The OSSTF further alleges that the substance of the Application was appropriately dealt with by the Ontario Human Rights Commission (“Commission”); and

(iv) The OLRB also alleges that the Tribunal does not have jurisdiction over the OLRB’s adjudicative decisions.

5The applicant objected to the respondents’ request for early dismissal and indicated that he is unable to participate in an oral proceeding because of his disability-related limitations.

Previous Case Assessment Direction

6In an earlier Case Assessment Direction issued on June 5, 2009, the Tribunal directed the applicant to provide the Tribunal with current medical confirmation of his disability-related limitations and accommodation needs as they relate to participating in the Tribunal’s process.

Applicant’s Accommodation Needs

7The applicant has provided a letter, dated June 23, 2009, from his Primary Care Nurse Practitioner stating that, due to his disability, the applicant “…is not well enough to attend hearings or participate in teleconferences.”

DECISION

8The Tribunal determines that, out of the four bases upon which the respondents seek early dismissal, it would be most fair, just and expeditious to consider two jurisdictional issues, specifically issues (iii) and (iv), by way of written submissions.

9Specifically, with respect to issue (iii), section 53(8) of the Code provides that the Tribunal lacks jurisdiction to accept an application in circumstances where the allegations contained in the application constituted the subject-matter or substantially the same subject-matter of a complaint previously filed with the Commission under the old Part IV of the Code.

10Specifically, with respect to issue (iv), the Tribunal’s recent jurisprudence, has held that the content, reasons and result contained in a decision or order are not a “service” within the meaning of the Code: see Baird v. Workplace Safety and Insurance Appeals Tribunal, 2009 HRTO 99; Christianson v. Ontario (Information and Privacy Commissioner), 2009 HRTO 203; and Gibson v. Ontario (Attorney General), 2009 HRTO 870.

11As a result, the Tribunal determines that it is appropriate to receive submissions with respect to the following:

• Whether or not the Application as against OSSTF is barred by virtue of section 53(8); and

• Whether or not the subject-matter of the Application as against the OLRB is beyond the jurisdiction of the Tribunal.

12Accordingly, the Tribunal makes the following Order:

a. By October 16, 2009 the applicant shall deliver to the respondents and file with the Tribunal submissions on whether the Tribunal has jurisdiction over the subject-matter of this Application and/or whether this Application is barred by virtue of section 53(8) of the Code. The submissions shall include any material facts and legal authorities upon which the applicant relies in support of his position;

b. By November 5, 2009, the respondents shall deliver to the applicant and file with the Tribunal submissions, additional facts and legal authorities upon which the respondents rely in support of their respective positions; and

c. The applicant shall have until November 16, 2009 to deliver and file a Reply, if any.

13The Tribunal will defer consideration of the remaining issues of delay and section 45.1 (whether other processes “appropriately dealt with” the substance of this Application) until after disposition of the above-noted jurisdictional issues.

14The Tribunal may decide this matter on the basis of the parties’ written submissions or may issue further case management directions.