HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Marlene Teske Applicant
-and-
Canadian Union of Public Employees, Local 4685 Respondent
Interim DECision
Adjudicator: David Muir Date: June 22, 2010 Citation: 2010 HRTO 1405 Indexed as: Teske v. Canadian Union of Public Employees
1This is an Application filed on October 16, 2008 under section 53(3) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the "Code"). In the human rights complaint underlying the Application the applicant alleged that her right to be free from discrimination in the provision of services was infringed by the respondent, her bargaining agent, on the basis of age and disability.
2In 2009 HRTO 1480 the Tribunal dismissed a companion Application containing allegations of discrimination by the applicant's former employer and the instant Application was deferred pending the completion of an arbitration proceeding dealing with the same issues raised by this Application.
3The arbitration has concluded with an award by the arbitrator, incorporating the terms of a settlement arrived at with the assistance of the arbitrator. A dispute has arisen concerning the validity of the settlement and inferentially the award of the arbitrator. The respondent union states that the matter has been resolved by the arbitration proceeding where, amongst other things, the applicant agreed to withdraw this Application.
4In a prior Case Assessment Direction the parties were directed to file their submissions on the application of section 45. 1 of the Code or the doctrine of abuse of process, to these circumstances. The applicant was also directed to indicate whether or not this issue could be dealt with in writing or whether oral submissions were required. In this regard the applicant was requested to indicate whether in her view evidence was required; what that evidence would be and why such evidence was required.
5I have received the parties' submissions. Although the applicant's former employer appears to have been copied no submissions have been received from them.
6The applicant did not indicate whether or not the issue as framed above could be dealt with in writing and whether or not evidence would be required. The Tribunal's Rules for Procedure for Transitional Applications (Transitional Rules) provide that an application that is within the jurisdiction may not be finally disposed of without affording the parties with an opportunity to make oral submissions. Accordingly, a one day Case Resolution Conference will be held to hear the submissions of the parties on the application of section 45.1 or the doctrine of abuse of process to this Application.
7In her submissions the applicant sought leave to add her former employer as a respondent or alternatively she would file a new application with the Tribunal. Rule 12.3 of the Transitional Rules provide that an application under section 53(5) must be based on the subject matter of the complaint or amended complaint as filed with the Ontario Human Rights Commission. That complaint underlying this Application relates to an alleged failure of the respondent union to properly represent the applicant in the processing of a grievance. As noted above a companion Application against the applicant's former employer was dismissed on the basis that it was not a continued complaint and therefore not properly brought before the Tribunal. The new allegations against the employer appear to relate to the settlement of the arbitration hearing in early 2010. These allegations do not form part of the subject matter of the complaint, having occurred several years after the complaint was filed at the Commission, they cannot be considered as part of this Application.
8If the applicant intends to file an application against her former employer she is directed to provide notice of same to the Registrar-Transition.
9The Tribunal may make further Directions in this matter.
10I am not seized.
Dated at Toronto, this 22^nd^ day of June, 2010.
"signed by"
____________________________________
David Muir Vice-chair