White v. Avon Maitland District School Board, 2010 HRTO 130

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

David White

Applicant

-and-

Avon Maitland District School Board and

Ontario Secondary School Teachers’ Federation

Respondents

interiM DECISION

Adjudicator: Alison Renton

Date: January 20, 2010

Citation: 2010 HRTO 130

Indexed as: White v. Avon Maitland District School Board

1In this Application filed on May 1, 2009, under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), the applicant alleges that the respondents discriminated against him on the basis of disability in employment.

2The applicant alleges that the respondent Avon Maitland District School Board (the “school board”) failed to provide reasonable accommodation when he returned to work in January 2004. The applicant alleges that the respondent Ontario Secondary School Teachers’ Federation (the “union”) failed to properly represent him and “failed to take into account his medical condition and ability” with respect to a grievance that was filed by the union on his behalf in 2008, and subsequently withdrawn in 2009, pertaining to his absence in 2003 – 2004, his return to work in 2004 and his subsequent absence in 2004. The applicant alleges that the respondents’ actions affected his disability payments which he received from the school board’s insurance carrier and the level of pension premiums made to the Ontario Teachers Pension Plan on his behalf.

3The respondents have filed Responses and request that the Tribunal dismiss the Application. Both respondents submit that the Application is untimely because it was filed more than one year after the incident to which the Application relates. They further submit that the Application does not disclose any alleged violation of the Code and therefore there is no prima facie case of discrimination under the Code. The applicant did not file a Reply, despite correspondence from the Tribunal dated July 3 and November 3, 2009 informing him that he could do so. The time for filing a Reply has now passed.

Timeliness of the Application

4The Application in this matter appears to have been filed more than 5 years after the events complained of (i.e. the applicant returned to work in January 2004 and stopped working in June 2004).

5Section 34 requires that an Application be filed within one year of the date of the last incident unless the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay. The section states:

(1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,

(a) Within one year after the incident to which the application relates; or

(b) If there was a series of incidents, within one year after the last incident in the series.

(2)A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

6The Tribunal will schedule a half-day conference call hearing to hear the parties’ submissions on the issue of whether the Application is timely and whether any delay in filing the Application was incurred in good faith.

7If any party wishes to rely upon any additional written materials (including written submissions, documents or case law) or facts not already before the Tribunal, they must deliver such additional material to the other parties and file it with the Registrar within 21 days of the date of this Interim Decision. Following the conference call the Tribunal will determine whether there is a basis to proceed with the Application, and may make further directions.

Is there a prima facie case?

8The respondents assert that, even assuming the facts in the Application are true, the Application does not disclose a prima facie violation of the Code and the Application should be dismissed.

9During the conference call described in para. 6, the Tribunal will hear the parties’ submissions on the issue of whether, even accepting all the facts as described, the applicant has established a violation of the Code.

ORDER

10The Tribunal makes the following order:

a) The Tribunal will schedule a half-day conference call hearing to hear the parties’ submissions on:

a. Whether the Application is timely or whether any delay was incurred in good faith?

b. Whether the applicant has raised allegations that, if accepted to be true, are sufficient to establish a violation of the Code?

11The following directions shall apply to the conference call hearing:

a) The applicant should be prepared to proceed first at the conference call hearing, by responding to the written arguments of the respondents on the above questions.

b) Any party that wishes to rely on any written materials (including written submissions, documents or case law) or rely on any facts not contained in the Applications or Responses, must deliver them to the other parties and file them with the Registrar within 21 days of the date of this Interim Decision.

12I am not seized of this matter.