HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Z.S. by her Next Friend L.S.
Applicant
-and-
Le Conseil scolaire de district des écoles catholiques du Sud-Ouest and Lorraine Pelletier
Respondents
INTERIM DECISION
Adjudicator: Michelle Flaherty
Indexed as: Z.S. v. Conseil scolaire de district des écoles catholiques du Sud-Ouest
1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”) in which she alleges discrimination on the basis of race, colour, and place of origin in the context of employment and the provision of goods and services.
2In essence, the applicant is alleging that the individual respondent, a teacher employed by the organizational respondent, failed to take her daughter’s illness seriously and made discriminatory comments relating to her daughter's race, colour, and place of origin.
3The organizational respondent was initially identified as the École Saint Jean-Baptiste. A Response was filed stating that the École Saint Jean-Baptiste is not a legal entity and that the Conseil scolaire de district des écoles catholiques du Sud-Ouest has the appropriate authority (“Conseil”). The style of cause has been amended accordingly.
4In its Response, the Conseil denies the allegations of discrimination and states that it is not a proper respondent to the Application. It seeks the dismissal of the Application against both the Conseil and the École Saint Jean-Baptiste.
5The individual respondent, Lorraine Pelletier, has filed a Response in which she denies the allegations of discrimination. She asks that the Application be dismissed or, in the alternative, deferred pending the outcome of grievance proceedings and a complaint based on the same facts and issues filed with the Ontario College of Teachers (“College”).
6The applicant has filed a Reply in which she objects to the dismissal or deferral.
7In response to an inquiry by the Tribunal, the individual respondent has advised that the grievance was resolved and that the parties to it have entered into a settlement agreement. She also advised that the College complaint has reached its conclusion and that the College decided not to take any disciplinary action against the individual respondent.
Conseil’s Request to Dismiss
8The Conseil argues that the Application should be dismissed against it because it is not a proper respondent in the matter.
9According to the Conseil, the allegations in the Application relate only to the individual respondent, Lorraine Pelletier. The Conseil states that it appropriately disciplined Pelletier in the circumstances and that, in any event, because Pelletier’s behaviour was contrary to policy and not tolerated or approved by the Conseil, it falls outside the scope of her work functions.
10The Conseil’s Request to Dismiss raises factual and legal issues that cannot be appropriately determined at this stage of the proceedings. Although the applicant’s description of the events giving rise to the Application does not explicitly reference the Conseil, it does take issue with Pelletier’s alleged behaviour within the workplace. Without a full evidentiary record, the Tribunal cannot properly determine whether the Conseil has any vicarious responsibility for Pelletier’s alleged behaviour.
11Accordingly, the Conseil’s Request to Dismiss is denied without prejudice to its ability to raise the issue at the hearing of this matter.
Request to Defer
12The Tribunal may defer consideration of an application, on such terms as it may determine, on its own initiative or at the request of any party (Rule 14.1). Deferral ensures that proceedings dealing with the same issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law.
13The Tribunal will generally defer an application where there is ongoing litigation based on the same facts and issues. However, the Tribunal must also consider, in light of the particular circumstances of each case, whether deferral is the most fair, just and expeditious way of proceeding with the application. Deferral is not automatically invoked simply because the parties are involved in other legal proceedings.
14Based on the individual respondent’s submissions regarding the status of the grievance and of the complaint, I am satisfied that neither of these matters are ongoing.
15Accordingly, there is no basis to defer consideration of this Application and the request to defer is denied.
Pelletier’s Request to dismiss
16Section 45.1 of the Code provides:
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.
17For section 45.1 to apply, the respondent must demonstrate that:
a. the grievance and/or the complaint before the College is a proceeding within the meaning of the Code; and
b. either the grievance or the matter before the College has reached its conclusion and has “appropriately dealt with” the substance of the Application.
18In the circumstances, it is appropriate to determine Pelletier’s Request for an early dismissal of the Application as a preliminary matter.
19Section 43(2) of the Code provides that the Tribunal shall not finally dispose of an application within its jurisdiction without affording the parties a chance to make oral submissions.
20Accordingly, within ten days of the date of this Interim Decision, the applicant must advise the Registrar and the respondents whether she wishes to make oral submissions on the Request to dismiss.
21If the applicant wishes to make oral submissions, the Registrar will schedule a telephone conference hearing for that purpose. Any party wishing to rely at the hearing on written materials not already filed with the Tribunal or any facts not contained in the Application or Response must deliver such documents or information to the other parties and file them with the Registrar 21 days prior to the date of the hearing.
22If the applicant indicates that she does not wish make oral submissions or if she does not communicate with the Tribunal within ten days of the date of this Interim Decision, the Tribunal may direct the parties to provide further written submissions regarding the deferral issue.
23I am not seized of this matter.
Dated at Toronto, this 30^th^ day of September, 2010.
”signed by”______________
Michelle Flaherty
Vice-chair