Colella v. Toronto Catholic District School Board, 2010 HRTO 1768

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Anna Colella

Applicant

-and-

Toronto Catholic District School Board, Bob Dubniak, Paul Deighan, Sam Talarico, Caesare Mirabelli and Frank Ferrante

Respondent

-and-

Canadian Union of Public Employees and its Local 1280

Intervenor

Interim DECISION

Adjudicator: David Muir

Date: August 27, 2010

Citation: 2010 HRTO 1768

Indexed as: Colella v. Toronto Catholic District School Board

AppearanceS BY

Anna Collella, Applicant ) Self represented

Toronto Catholic District School Board, ) John Woon, Counsel

Bob Dubniak, Paul Deighan, Sam Talarico, )

Cesare Mirabelli and Frank Ferrante, )

Respondents )

Canadian Union of Public Employees and ) Quadira Jackson, Counsel

its Local 1280, Intervenor )

1This is an Application filed on June 29, 2009 pursuant to section 53(5) of the Ontario Human Rights Code, R.S.O. 1990. c. H.19, as amended, (the "Code"). The applicant in the human rights complaint underlying this Application alleges that her right to be free of discrimination and harassment in the workplace in respect of an alleged disability and sex has been infringed by the respondents.

2This Interim Decision deals with a Request for Order During Proceedings filed by the respondents.

3The respondents ask that the Application be dismissed pursuant to section 45.1 of the Code or, in the alternative, that the Application be deferred pending the outcome of one or more grievances touching on the subject matter of the Application. The respondents also state that elements of the Application are out of time.

4The respondents state that the applicant has filed 20 grievances between August 1998 and June 2009, 14 since February 2005. The respondents state that many of the grievances appear to touch on the issues raised in the Application. The respondents also state that some of these grievances have been settled or abandoned and some remain outstanding.

5In the human rights complaint underlying this Application (the complaint) the applicant made the following specific allegations:

a. In 1998 the applicant was denied the opportunity to participate in a job fair because she had taken too many sick days from work.

b. In July 2006 the applicant alleges that pictures of women in bikinis were posted in a washroom used by staff. The applicant also alleges that a skeleton with male genitalia was hung on a refrigerator used by staff. The applicant alleges that when she reported this is to a manager he was dismissive of her concerns.

c. The applicant alleges that in February 2005 she was improperly denied a work assignment which was given to a male employee. She also alleges that she the employer improperly deducted a half day's pay.

d. The applicant alleges that in 2006/2007 she was harassed by the Vice-Principal. The applicant alleges that because of this harassment she was required to take a leave from work.

e. The applicant alleges that in February 2005 she was removed from her work location. The applicant alleges that the employer's state reason, work performance was not the true reason.

DELAY

6As I indicated to the parties at the hearing, significant elements of this Application are out of time. The applicant alleges that underlying all her complaints is her belief that she was treated differently because she was a woman and not a man. This may be so but, nonetheless, the allegations date back to 1998 with lengthy gaps between them.

7Section 34 of the Code provides as follows:

34. (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.

8Under section 34, an applicant is prevented from filing an application more than a year after the incident, or the last incident in a series, unless the Tribunal is satisfied that the circumstances in subsection 34(2) exist. The Tribunal has interpreted this provision in its application to Transition cases as requiring that the applicant have filed her complaint with the Commission within one year of the incident or last in a series of incidents complained of. The complaint was filed with the Commission on August 22, 2007.

9The allegation in paragraph (a) respecting the job fair in 1998 is out of time, it being 7 years prior to the next alleged incident which is said to have occurred in 2005. As I interpret section 34 where a series of events is relied upon, any significant gap in time between incidents in a series would in most cases interrupt the series in the absence of evidence of the considerations set out in section 34(2). Similarly the allegations of discrimination in paragraphs (c) and (e) which appear to have occurred in early 2005 are more than one year prior to the complaint being filed and do not appear to be connected in time to any of the other allegations and I am not satisfied that they could be considered to be one of a series of incidents.

10The remaining allegation respecting the photos and skeleton in July 2006 as well as the generalized allegation of harassment by a supervisor in 2006-2007 are timely in that they are made within a year of the complaint, or are sufficiently related in time to constitute a series of incidents. This is preliminary conclusion based on the allegations as framed which in respect of the harassment claim is entirely devoid of particulars.

SECTION 45.1

11Section 45.1 provides as follows:

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.

12The Tribunal has interpreted section 45.1 of the Code as requiring consideration of a two-part test: (1) whether there was another "proceeding"; and (2) if so, whether the proceeding "appropriately dealt with" the substance of the Application.

13There is no question that a grievance arbitration is a proceeding. What is not clear is what has happened to the grievance(s) touching on issues raised in the Application and whether or not the subject matter of this Application has been appropriately dealt with in those proceedings. The respondent took the position at least inferentially that it did not matter what the precise disposition of a grievance was because the grievance process will deal with the human rights issues appropriately as the issues in each proceeding arise out of the same factual allegations.

14Although the Tribunal does not sit in review of other decision makers it is not enough to say that because the human rights issue could have or should have been determined in the other proceeding we will deem that they were notwithstanding the actual disposition of the matter. For example, the settlement of a grievance at the arbitration hearing may or may not be sufficient to meet the requirements of section 45.1 depending on the circumstances.

15It does appear that most of the issues raised in the complaint have been the subject of grievances filed by the applicant and as indicated earlier, the applicant has filed a number of grievances and continues to do so. The status of many of the grievances remains unclear. However, as I have dismissed aspects of the Application on the basis that the allegations are out of time the status of many of them, in particular those filed in 1998 and 1999, is moot. It also does not appear to be the case that the applicant's most recent grievances are related to the issues raised in the complaint as they appear to relate to return to work issues subsequent to a WSIA claim.

16It does not appear that the allegation with respect to the inappropriate pictures in July 2006 was the subject of a grievance. However the allegations respecting harassment by a Vice-Principal in 2006/2007 are the subject of at least one grievance which was filed on either March 21 or October 30, 2007.

17If that grievance is ongoing this Application likely should be deferred pending its resolution pursuant to section 45 of the Code. If that proceeding has concluded then the disposition of it should be disclosed in order to address the other element of the section 45.1 test.

18It appears that this grievance was ongoing at the time of the hearing and as some time has passed since, the parties are directed to provide their submissions as to the status of grievance LS-16-07 filed either on March 31 or October 30, 2007 and any other grievances related to the remaining issues in this Application. The Tribunal will issue further Directions and or a final determination of this interim issue upon receipt of the parties' submissions on this point.

19I am seized.