Llewellyn v. Hamilton Wentworth District School Board, 2009 HRTO 2223

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jennifer Llewellyn

Applicant

-and-

Hamilton Wentworth District School Board

Respondent

INTERIM DECISION

Adjudicator: Kaye Joachim

Date: December 18, 2009

Citation: 2008 HRTO 2223

Indexed as: Llewellyn v. Hamilton Wentworth District School Board

APPEARANCES BY

Jennifer Llewellyn, Applicant ) On her own behalf

Hamilton Wentworth District School Board, ) Jane A. Gooding, Counsel

Respondent )

Interim Decision

1This Interim Decision addresses the respondent’s Request for an Order during Proceeding seeking the dismissal of the Application pursuant to s. 45.1 of the Ontario Human Rights Code, R.S.O. 1990, c.H.19 (the “Code”) on the basis that the substance of the Application has been appropriately dealt with during the grievance process.

2The applicant commenced employment with the respondent on March 6, 2003 in the position of casual custodian. The applicant self-identified as a person with an addiction and the respondent asserts that they accommodated her frequent absences and other performance issues throughout her employment.

3In June 2006, the applicant, her union and the respondent signed a last chance agreement setting out the terms for continued employment. In December 2006, the respondent terminated the applicant’s employment for breach of the last chance agreement. The union filed a grievance alleging unjust termination. The union withdrew the grievance by letter dated March 19, 2007. The applicant filed a complaint with the Ontario Human Rights Commission on April 20, 2007 alleging discrimination in employment on basis of disability.

Request to Dismiss under Section 45.1

4Section 45.1 of the Code provides as follows:

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.

5The issue for this Tribunal is whether another proceeding has appropriately dealt with the substance of all or part of the Application, such that all or part of the Application should be dismissed.

6It is helpful to consider s. 45.1 in two parts: (1) whether there was another “proceeding” and (2) if so, whether it “appropriately dealt with” the substance of the application. With regard to the second issue, the Tribunal may consider whether the application arises from the same facts that provided the basis for the other proceeding, whether the substance of the issues raised in each forum was substantially the same, and whether the matter raised was “appropriately dealt with” in the other proceeding.

7The respondent asserts that the grievance raised the same facts and issues raised in the human rights Application that filing a grievance and proceeding through the grievance process is a proceeding within the meaning of s. 45.1 and that the withdrawal of the grievance by the Union means that the grievance was “dealt with.”

8It is unnecessary to address those submissions as I am not satisfied that the substance of the human rights Application was “appropriately” dealt with as a result of the above processes.

9The respondent states that the applicant did not oppose the withdrawal of the grievance. I note that the letter of withdrawal was signed by the union alone and there is no indication in the letter that the applicant would be prohibited from proceeding with a human rights application. The letter of withdrawal is specifically stated to be “without prejudice.”

10The applicant wrote to the Tribunal indicating that she was advised by the union that the matter could be dealt with more speedily through the human rights process and that was why she agreed with the withdrawal of the grievance.

11In my view, this situation is distinguishable from the case of Dunn v. Sault St. Marie (City), 2008 HRTO 149, relied upon by the respondent. That case addressed a signed settlement by the applicant withdrawing an application under the Ontario Labour Relations Act, in return for further assessments. The settlement was found to have appropriately dealt with the allegations against the Union.

12In this case there is no basis to find that a unilateral withdrawal of the grievance by the Union appropriately dealt with the substance of the Application.

13The parties have agreed to mediation. The Registrar-Transition will schedule the mediation in due course.