HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
David Young
Applicant
-and-
Toronto District School Board
Respondent
-and-
Elementary Teachers’ Federation of Ontario – Toronto
Occasional Teacher Local
Intervenor
INTERIM decision
Adjudicator: Sherry Liang
Indexed as: Young v. Toronto District School Board
1This is an Application filed on November 25, 2008, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”). The purpose of this Interim Decision is to deal with a Request to Intervene by the Elementary Teachers’ Federation of Ontario – Toronto Occasional Teacher Local (the union), and to give some procedural directions.
2The Application alleges that the Smart Find Express system used by the Toronto District School Board (the Board) to dispatch occasional teachers for daily teaching assignments discriminates on the basis of age in that it favours retired teachers. The Application also alleges that to the extent the same system is also used to list job postings for occasional teachers, it also favours retired teachers.
3The applicant further alleges that he has experienced reprisals as a result of claiming or enforcing his rights under the Code, in that he has been receiving fewer work assignments.
4The union filed a Request to Intervene. In the Request, it states that it represents occasional teachers employed in public elementary schools across the province. The union states that the rules regarding the hiring of occasional teachers about which the applicant complains were developed by the Board in conjunction with the union. The union also submits that the issues raised by the Application have already been litigated. In this regard, it refers to a complaint made by the applicant to the Ontario Labour Relations Board (the OLRB) alleging that the union had discriminated against him, and relies on the fact that the OLRB dismissed that complaint.
5No Response was made to the union’s Request to Intervene by either the applicant or the respondent, although the respondent has named the union as an affected party to the Application.
6The union clearly has a significant interest in the issues raised by the Application. The Tribunal grants the union’s Request to Intervene.
7Both the union and the Board rely on a decision of the OLRB dated February 3, 2004. In that decision, the OLRB dismissed the applicant’s contention that the union had breached its duties towards him in agreeing to the Board’s occasional teacher dispatch system. The Board requests that this Application be dismissed on the basis that the OLRB proceeding in whole or in part appropriately dealt with the substance of the matters raised here.
8Section 45.1 of the Code states:
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.
9The Tribunal will schedule a half-day hearing to receive the oral submissions of the parties on the issue of whether it should dismiss this Application under section 45.1. For the purpose of this hearing, the Tribunal directs the parties to deliver to the other parties and file with the Tribunal, by no later than 14 days prior to the date set for the oral hearing, the following materials:
a. a statement of any further facts to be relied upon beyond those facts contained in material already before the Tribunal; if the parties intend to call oral evidence on the issue of the application of section 45.1 they must also file a brief statement of the evidence of each witness;
b. any documents to be relied upon; and
c. any case law to be relied upon.
10I am not seized.
Dated at Toronto, this 10th day of March, 2009.
“Signed By”
Sherry Liang
Vice-chair