Cunningham v. CUPE 4400, 2010 HRTO 2238

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Nohemy Cunningham Applicant

-and-

CUPE 4400, Anna Hutchinson, Ann Cowan and Yolanda McLean Respondents

AND B E T W E E N:

Nohemy Cunningham Applicant

-and-

Toronto District School Board, Kathryn Rumble, Rosemarie Hobbins-Coombs, Pat Pild and David Breckon Respondents

INTERIM DECISION

Adjudicator: David Muir Date: November 9, 2010 Citation: 2010 HRTO 2238 Indexed as: Cunningham v. CUPE 4400

1These Applications were filed on December 31, 2008 under section 53(3) of Part VI of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). This Case Assessment Direction deals with a Request for Order During Proceeding filed by the respondents and other procedural matters.

2The human rights complaints (the complaints) underlying these Applications were filed with the Ontario Human Rights Commission in June 2006. The complaint underlying Application T-0917-09 contains allegations of discrimination by CUPE 4400 and several of its officials (the union Application and union respondents respectively). The complaint underlying Application T-0918-09 relates to allegations of discrimination by the applicant's employer at the time, the Toronto District School Board and several of its employees (the employer Application and employer respondents respectively).

Should these Applications be deferred

3The Tribunal requested the parties' submissions on whether or not these Applications should be deferred pending the outcome of a grievance arbitration dealing with several grievances filed by the applicant.

4None of the parties thought it appropriate to defer these Applications in these circumstances. All of the respondents stated that there was no significant overlap between the issues raised in the grievances and these Applications. It was also stated that the grievances did not raise any of the human rights issues raised in the Applications. The employer respondents also stated that there would be substantial prejudice to their ability to respond to the allegations in the Application if deferred pending the outcome of the arbitration proceeding. The applicant made no specific submissions on this issue.

5I am satisfied based on the materials filed and the parties' submissions that it is not appropriate to defer these Applications.

Request to Dismiss

6The union respondents seek the early dismissal of the union Application pursuant to section 45.1 of the Code on the basis that the substance of it has been appropriately dealt with in another proceeding. The union respondents state that the applicant raised substantially identical issues in a duty of fair representation application (DFR) before the Ontario Labour Relations Board (OLRB). The union respondents state that the DFR was dismissed by the OLRB. The respondent union states that the applicant, having chosen to file an application at the OLRB raising the same issues as are articulated in the instant Application, cannot now raise the same allegations against the union respondents in a different forum. The union respondents state that the applicant's attempt to do so is an abuse of process.

7The Code and the Tribunal's Rules provide that an Application within the Tribunal's jurisdiction may not be finally disposed of without giving the parties an opportunity to make oral submissions. The applicant has not waived her right to make oral submissions on the union respondents' Request to dismiss the Application. The Tribunal will hear the parties' submissions on the union respondents Request at the outset of the Case Resolution Conference on January 21, 2011.

Scope of the Application

8The union respondents state that the applicant has made a number of new allegations in a letter dated October 10, 2010 which were not raised in the complaint comprising the subject matter of the Application and should not be considered as part of this Application.

9An Application made pursuant to section 53(3) of the Code must be based on the complaint as it was when it was abandoned at the Commission and brought to the Tribunal pursuant to the transitional provisions. Accordingly only the allegations made in the complaint will be considered by the Tribunal. The new allegations made in the letter of October 10, 2010 are not included in the complaint and therefore cannot be considered by the Tribunal.

Order

10In order to ensure the orderly adjudication of these Applications the Tribunal makes the following Directions.

a. The Tribunal will hear the oral submissions of the applicant on the union respondents Request, and the reply submissions of the union respondents, if necessary at the outset of the Case Resolution Conference.

b. If the employer respondents wish to make submissions on the union respondents Request they shall deliver and file written submissions on the Request on or before December 31, 2010.

11The Tribunal may make an oral ruling on the union respondent's Request and the parties should be prepared to proceed to the merits of these Applications at the discretion of the Member presiding. I am not seized.