Stockert v. York Region District School Board, 2010 HRTO 2222

Human Rights Tribunal of Ontario

B E T W E E N:

Lindsay Stockert Applicant

-and-

York Region District School Board Respondent

INTERIM DECISION

Adjudicator: Sherry Liang Date: November 4, 2010 Citation: 2010 HRTO 2222 Indexed as: Stockert v. York Region District School Board

1This is an Application filed on May 31, 2010 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the “Code”). The applicant alleges discrimination with respect to employment on the ground of disability. She alleges that the respondent denied her the opportunity to work in job positions that would have permitted an accommodation of her medical condition, during the period of August 2009 to November 2009.

2The applicant is represented in the workplace by the Canadian Union of Public Employees and its Local 1734 (the Union), which has filed a Request to Intervene. Among other things, the Union states that it filed a grievance on the applicant's behalf alleging a violation of the collective agreement when the respondent failed to place the applicant in a position that appropriately accommodated her disability. The Union states that the grievance was resolved through Minutes of Settlement, which it understood resolved all of the outstanding issues regarding the applicant's medical issues and accommodation.

3In its Response, the respondent requests that the Tribunal dismiss the Application on the basis that the applicant signed a full and final release with respect to the same matter. The Response describes some of the background facts to the Application and the respondent’s position regarding the applicant’s claim that she had a medical basis for a claim of accommodation in the workplace through a job transfer. The respondent relies on a Memorandum of Agreement, which it claims resolves all outstanding issues regarding the applicant's employment, and was signed on the applicant's behalf by the Union. The respondent reserved its right to file a more detailed factual Response to the Application.

REQUEST TO INTERVENE

4I am satisfied that the Union has an interest in and is affected by the issues raised in this Application. Accordingly, the Tribunal grants the Union's Request to Intervene.

RESPONSE

5In filing its Response, the respondent relies on Rule 8.2(a) of the Tribunal’s Rules of Procedure, under which a respondent requesting dismissal of an Application on the basis of a full and final signed release need not respond to the allegations in the Application.

6Having regard to all the material before me, I find this an appropriate case to direct the filing of a complete Response pursuant to the Tribunal’s discretion. Ordinarily, a respondent must file a complete Response upon receipt of an Application, regardless of any preliminary issues it may wish to raise. The Tribunal has explained the reasons for this in other decisions. Essentially, the filing of a complete Response assists the parties in understanding the nature of the issues, and enables the Tribunal to make decisions on how to proceed with the Application with a view to facilitating its fair, just and expeditious resolution. Rule 8.2 sets out three circumstances under which a respondent need not file a complete Response, including 8.2(a), relied on here.

7Rule 8.2 also provides that notwithstanding anything in that Rule, the Tribunal may direct a respondent to file a complete Response where the Tribunal considers it appropriate.

8In this case, it is apparent that there are significant areas of disagreement about the circumstances surrounding the Minutes of Settlement, including whether the Union signed it on the applicant’s behalf and whether it was intended to resolve the applicant’s claim to accommodation in the workplace. The filing of a complete Response may assist the Tribunal in its understanding of these issues and, together with the Application, provide a context for its determinations on how to proceed with the Application.

9A complete Response must therefore be filed with the Tribunal and delivered to the other parties within one month of this Interim Decision. The applicant may file an amended Reply within two weeks of receiving the complete Response.

PRELIMINARY HEARING

10The Tribunal will direct a one-day in person hearing to receive the evidence and submissions of the parties on the request to dismiss. At the hearing, the parties will be expected to address the issue of whether, in light of the Minutes of Settlement, it would be an abuse of process to proceed to a hearing of the Application, and/or whether the Application should be dismissed under section 45.1 of the Code.

11The parties must deliver any additional documents or case law that they wish the Tribunal to consider to each other and file them with the Tribunal no later than 14 days prior to the hearing. Any party wishing to call oral evidence on the preliminary issues must also deliver and file witness statements at the same time.

12I am not seized of this matter.