Fay Marc-Ali v. Kelly Graham, 2009 HRTO 2265

Human Rights Tribunal of Ontario

BETWEEN:

Fay Marc-Ali Applicant

-and-

Kelly Graham Respondent

INTERIM DECISION

Adjudicator: Naomi Overend Date: December 24, 2009 Citation: 2009 HRTO 2265 Indexed as: Marc-Ali v. Graham

1This Interim Decision deals with the respondent’s request for early dismissal of the Application based on the settlement of a grievance which the respondent states has appropriately dealt with the substance of the Application.

2The applicant filed this Application on July 27, 2009, under s. 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”), alleging discrimination in employment on the basis of sex and colour. The applicant alleges that she was disciplined by the respondent, a supervisor, for taking a break. She alleges that she would not have been treated in this fashion if she was white, male and/or had more seniority.

3The applicant is a subway operator for the Toronto Transit Commission (“the TTC”). It would appear that following the altercation with Graham, the applicant was “relieved of” her duty by the Route Supervisor. Two representatives of the applicant’s union, Amalgamated Transit Union Local 113 (“Local 113”) were present at the meeting at which this occurred and they appealed this decision to Step 1, thereby initiating the grievance process. The grievance proceeded to Step 4, at which time it was settled.

4The applicant acknowledges that she had input into the settlement, although she states she only reluctantly agreed to the terms. There are no signed minutes of settlement between the parties. It would appear that the settlement was formalized by way of a letter from the TTC to Local 113.

5The respondent did not file a full Response, but sought early dismissal pursuant to section 45.1 on the basis of this settlement of the grievance. The applicant filed no Reply or written submissions in response to the respondent’s request for early dismissal. She did, however, file two Requests for Order During Proceedings (Form 10). In the first, she requested that her Application be amended to include different heads of damages. In the latter, she requested that the Tribunal amend her Application to add six individuals who are identified as part of “TTC Management,” as well as five members of Local 113. It is unnecessary to deal with the applicant’s two Requests to amend prior to determining the request for early dismissal.

6Section 43(2) of the Code provides that the Tribunal shall not finally dispose of an application within its jurisdiction without affording the parties a chance to make oral submissions. Accordingly, the Registrar shall schedule a one day hearing to consider whether the Application should be dismissed.

7Although Local 113 has not filed a Request to Intervene (Form 5), it has filed extensive submissions on behalf of the five members of Local 113 whom the applicant proposes adding to her Application. If it wishes to make submissions at the hearing on the early dismissal, it must seek leave to intervene from the Tribunal. Local 113 should deliver to the parties and file with the Tribunal any Request to Intervene (Form 5) by January 8, 2010. The parties shall have until January 24, 2010 to deliver and file a Response to the Request, if any. A copy of this interim decision shall be sent to Local 113

8This hearing will proceed by way of teleconference unless the parties advise that an in-person hearing is required. The parties should make any request for an in-person hearing, and provide the reason for the request, to the Tribunal by January 8, 2010.

9If any party wishes to rely on written material not already filed with the Tribunal or any facts not contained in the Application or Response, the party should deliver such documents or information to the other parties and file the same with the Tribunal no later than 14 days before the scheduled hearing.

10In preparing for the hearing, the parties may wish to review section 45.1 of the Code, Rule 22 of the Tribunal’s Rules of Procedure, the Tribunal’s jurisprudence on those provisions (found at www.canlii.org) and the Tribunal’s Applicant’s Guide and Guide to Preparing for a Hearing before the HRTO available on the Tribunal’s website (www.hrto.ca) or from the Registrar’s office.

11I am not seized of this matter.