HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Evgeny Kopylov

Applicant

-and-

Toronto Catholic District School Board

Respondent

INTERIM DECISION

Adjudicator: Naomi Overend

Date: July 7, 2009

Citation: 2009 HRTO 993

Indexed as: Kopylov v. Toronto Catholic District School Board

APPEARANCES BY

Evgeny Kopylov ) On his own behalf ) )

Toronto Catholic District School Board ) Paul Matthews, Counsel ) )

1This Interim Decision deals with the respondents’ request to defer the Application until such time as his grievance filed by the Ontario English Catholic Teachers Association (“OECTA”) has been completed. It also deals with the applicant’s request for production of certain information held by the Toronto Catholic District School Board (the “Board”).

2These requests were determined by way of an oral hearing, on what was scheduled to be the first day of the hearing on the merits. An oral ruling was made deferring the hearing on the merits of the Application pending the outcome of the grievance. The parties were advised that written reasons would follow on this issue, as well as on the applicant’s request for production.

BACKGROUND

3The applicant filed his Application on September 2, 2008 under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”), alleging discrimination in employment by the respondents on the basis of age. Specifically, the applicant alleges that the respondent Board has failed to hire him for a permanent teaching position, even though he has the appropriate qualifications, as set out in the Collective Agreement between the Board and the Toronto Occasional Teachers Local of OECTA (the “Local”). He alleges that during the relevant period younger candidates have been hired for permanent positions for which he was qualified.

The grievance process

4The applicant states that in early September 2007 he requested the Local accept a grievance concerning this failure to be hired to a permanent position, but his request was denied at that level. He then made the same request to the Provincial Office of OECTA in mid-September 2007, but for reasons apparently relating to the health of the person to whom his matter was assigned, his request languished until late 2008.

5In light of the delay at the provincial level, the applicant states that he again requested the Local file a grievance on his behalf in December 2008, and this time it agreed to commence a grievance. His grievance was submitted to the Board on February 18, 2009.

6The applicant’s grievance has proceeded through steps 1 and 2 of the grievance process. At both steps, the Board denied his grievance. The next step is to proceed to arbitration, which the applicant understands will be handled by the Provincial Office of OECTA. He was advised to contact Jeff Heximer at OECTA with respect to the referral of the grievance arbitration, which he did by way of email on June 16, 2004. Mr. Heximer wrote back to him on June 19, 2009, saying that he would contact the applicant the following week.

7The applicant states that, despite this promise, and despite the fact that he has written Mr. Heximer a response email and left phone messages with Mr. Heximer’s assistant, he has not heard back from him. At this stage he is not certain that OECTA will refer the grievance to arbitration. If OECTA does proceed with his grievance, he is not certain when that arbitration will be or whether the arbitration will address the age discrimination issue.

8During the breaks in the hearing before this Tribunal, he tried unsuccessfully to reach Mr. Heximer to get answers to these questions.

The application process

9In its Response to this Application, the respondent Board asked the Tribunal to defer the Application to the grievance process, although a grievance had not yet been filed at that time. The applicant set out his opposition to the respondent’s deferral request in his Reply. The deferral request was not dealt with at that time. Instead, the matter was scheduled for mediation, and when that did not result in a settlement, hearing dates were set for July 6 and 7, 2009.

10In anticipation of the hearing, the applicant filed his documents with the Tribunal and at the same time brought a request for production via a Request for Order During Proceedings. The respondent Board, on the other hand, failed to disclose any documents to the applicant or otherwise comply with Rules 16 and 17 of the Tribunal’s Rules of Procedure. It did not renew its request for deferral in advance, but instead waited until the first day of hearing to bring its request for deferral. This has all caused great inconvenience to the applicant who was scheduled to teach summer school and had to forgo the day’s income.

DEFERRAL

11The Tribunal will generally defer an application where there is an ongoing grievance under a collective agreement based on the same facts and issues. However, the Tribunal must also consider, in light of particular circumstances of each case, whether deferral is the most fair, just and expeditious way of proceeding with the application.

12The applicant is an occasional teacher for the respondent Board, which is the designation given to teachers who have not been hired into a permanent position. The parties agree that he was hired as an occasional teacher in March 2005, and has completed several long term occasional assignments. His specialties are math, science and physics. The Board states that approximately 80% of the teachers hired into permanent positions come from the occasional teacher pool.

13Both his grievance and Application are concerned with the failure of the applicant to be hired in a permanent position. The applicant relies on Article 22 of the Collective Agreement in both his grievance and his Application, the relevant part of which states:

22.03 Occasional teachers employed by the Toronto Catholic District School Board, who have applied for permanent teaching positions and who have demonstrated an ability to perform satisfactorily, shall be given consideration prior to outside applicants for a regular teaching position for which he/she is qualified that will include qualifications, length of service, long term occasional assignments and evaluations.

14The applicant states that it is not necessary to prove discrimination in order to establish a violation of article 22.03. His grievance, however, cites Article 8, the anti-discrimination provision, and the “Canadian [sic] Human Rights Code.” It is not clear whether, at this point, OECTA will pursue the age discrimination argument since the applicant has been unable to communicate with his OECTA representative. The issue of discrimination reportedly came up at the Step 2 meeting.

15During the course of argument on deferral, the applicant stated that it would have been his preference to pursue the grievance. Had OECTA acted in a timely fashion, he would have requested that his Application be deferred to the grievance process. However, in light of the uncertainty about whether OECTA will pursue his grievance and, if so, when that will take place, the applicant now wishes to proceed with his Application.

16Despite his commitment to now pursuing his Application, after considering his options, the applicant sought to adjourn the hearing dates scheduled for July 6 and 7, 2009, so that he might review the untimely production of documents and information from the respondent Board. I agree that the applicant, through no fault of his own, was not in a position to proceed on these dates. The decision to be made at this point was whether to defer or adjourn the hearing of the Application.

17Given the applicant’s stated preference for the grievance process, the only questions are whether deferring his Application will lead to undue delay in dealing with the issue that is at the core of his Application and grievance, and whether this should affect the Tribunal’s decision on deferral.

18In the event that the applicant is advised by OECTA that it will not be referring his grievance to arbitration, he can ask the Tribunal to bring his matter back on (see the discussion of Rules 14.3 and 14.4 below). This should not lead to undue delay assuming OECTA makes this decision in timely fashion. The applicant’s other concern is with respect to the timing of the grievance. In the event that there is undue delay in the processing of his grievance, the applicant can request that the Tribunal exercise its discretion under Rule 14.05 of the Rules of Procedure.

19In the circumstances of this case, the Tribunal is of the view that deferral is the most fair, just and expeditious way of proceeding with this Application. The Tribunal orders the deferral of this Application pending the conclusion of the applicant’s grievance. The Tribunal directs the parties’ attention to Rules 14.3 and 14.4 which outline the process by which the Application may be brought back on after the grievance has been concluded.

20A copy of this Interim Decision will be provided to both the Local and the Provincial Office of OECTA.

PRODUCTION OF INFORMATION

21The applicant made the following request for production:

1. List of all mathematics/science teachers hired for permanent positions with TCDSB between 2005 and 2009.

2. The year when these teachers were added to the TCDSB seniority list

3. The year when these teachers were added to the TCDSB occasional list.

4. The year of birth of above-mentioned teachers.

22Both in his request and in his oral submissions, the applicant indicated that he did not require the names of the teachers in this category, and that he understood the confidentiality concerns. The Board indicated that it did not object to providing the applicant with this information if it was not required to disclose confidential information about third parties. It was able to clarify that what the applicant meant by the term “seniority list” was, in fact, the date the affected teachers were hired to permanent positions.

23Accordingly, the Tribunal orders, in the event hearing dates are set to address the merits of this Application, that within 20 days of receiving the notice of confirmation of hearing from the Tribunal, the respondent Board provide to the applicant a chart listing all mathematics and/or science teachers who have been hired into permanent positions from 2005 onward, identified only by number, with the following information for each individual:

a. The date on which the teacher was hired into the permanent position;

b. The date, if applicable, when the teacher was placed on the occasional list

c. The teacher’s date of birth.