HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Anthony Colella

Applicant

-and-

Toronto Catholic District School Board

Respondent

-and-

Canadian Union of Public Employees, Local 1280

Intervenor

interim decision

Adjudicator: Keith Brennenstuhl

Date: March 26, 2010

Citation: 2010 HRTO 678

Indexed as: Colella v. Toronto Catholic District School Board

1This Application was received on June 29, 2009, under section 53(5) of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The respondents seek early dismissal of some or all of the Application under sections 34(1) and 45.1 of the Code and section 12 of the Rules of Procedure for Transitional Applications (the “Transitional Rules”). They also seek the removal of the personal respondents as parties.

Background

2The applicant filed a complaint with the Ontario Human Rights Commission on November 1, 2007, alleging discrimination in employment on the basis of disability dating back to 1995. The applicant worked for the organizational respondent as a caretaker and continues to work as a caretaker with modified duties. In his complaint he alleges that:

• in 1995 he suffered a recurrence of an old injury but because his employer inaccurately reported the incident, W.S.I.B. failed to recognize the recurrence and he was forced to return to work before he was fully recovered;

• in 2002 he lost his position as a union negotiator when he accused his employer’s representative of negotiating in bad faith;

• in 2002 he was demoted and his rate of pay reduced because he could not be accommodated in the head caretaker’s position;

• in 2003 he was denied work permits (overtime) because he was on permanent modified duties;

• in September 2006 his employer misrepresented the facts on an accident report and on a letter to W.S.I.B. and failed to clear up false statements made by other employees;

• in April 2007 he was deducted a full sick day when he was away for less than three hours;

• in June 2007 the new principal directed him to do tasks that violated his restrictions; and

• in September 2007 his dental benefits were cancelled due to his failure to pay the premiums while he was on W.S.I.B.

3Incorporated into the applicant’s section 53(5) Application are two additional allegations:

• that in April 2009 he had a disagreement with his employer with respect to a functional ability form and

• in May 2009 there was a further conflict with his employer as to whether a day of absence was to be classified as a sick day or a vacation day.

Delay

4The Tribunal can only consider claims alleging infringements of the Code where they are brought forward by filing an application within one year of the alleged incident, or, where there are a series of incidents, within one year of the date of the last incident in the series. Under section 34, the Tribunal may deal with an application filed more than a year after the incident, or the last incident in a series, if it is satisfied that the delay in filing the application was incurred in good faith and there is no substantial prejudice to the respondents.

5In my view, each of the applicant’s pre-2007 allegations are discrete events or incidents and they have not been brought forward within one year of their occurrence.

6The applicant has acknowledged as much but argues that the delay in bringing forward these allegations was incurred in good faith and therefore the allegations should be considered outside the one-year limitation period. I do not agree. The Tribunal has set a high onus on applicants to provide a reasonable explanation for the delay (Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241, at paras. 24-25). The applicant’s explanation for the lengthy delay is that he was hoping to resolve his employment issues internally and to his satisfaction. Other than that bald assertion, the applicant did not offer any reason demonstrating that he was unable, for valid reasons, to seek to enforce his rights under the Code in a timely manner.

7I find that the applicant has not established good faith with respect to the pre-2007 allegations and those allegations are therefore dismissed.

Rule 12

8Rule 12 of the Transitional Rules provides as follows:

12.1 To file a section 53(5) Application an Applicant must complete the Application (Form TR-1) deliver it to the Respondent(s) and file it with the Tribunal. A complete Application must provide the information requested in every section of the Application form and must include all required attachments.

12.2 The completed section 53(5) Application (Form TR-1) must be filed between January 1 and June 30, 2009 and must include:

(a) The complaint or the amended complaint filed at the Commission; and

(b) the Commission complaint file number.

12.3 Section 53(5) Applications made in accordance with these Rules must be based on the subject matter of the complaint filed at the Commission.

12.4 Where the Applicant wishes to add parties, combine two or more complaints to be dealt with together as a single application, or, having regard to Rule 12.3 amend the complaint, the Applicant may identify any such requests in their Application.

9In my view, Rule 12 contemplates that a section 53(5) application will be based on the subject matter of the complaint as it was when transferred from the Commission.

10I am of the view that a section 53(5) application is to be limited to the subject matter of the complaint made at the Commission and that the Tribunal will only exercise its discretion to allow amendments where it is necessary to ensure the fair, just and expeditious disposition of the application.

11In addition to the complaint filed with the Commission, the applicant has incorporated into his Application two additional allegations relating to incidents that occurred in 2009, approximately 18 months after the complaint was filed with the Commission. These incidents are outlined in paragraph 3 above. It is clear that these additions or amendments to the complaint relate to incidents that transpired after the complaint was filed at the Commission and are entirely new allegations. I am not satisfied that it is necessary to the fair, just and expeditious resolution of the Application to allow the addition of these new allegations. They are struck from the Application.

Section 45.1

12The respondents also have asked the Tribunal to exercise its discretion under section 45.1 of the Code to dismiss the allegations described as occurring in April and September 2007 on the basis that they have been appropriately dealt with through the grievance and arbitration procedure.

13Section 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.

14The issue is whether another proceeding has appropriately dealt with the substance of all or part of the Application, such that all or part of the Application should be dismissed.

15It is helpful to consider section 45.1 in two parts: (1) whether there was another “proceeding”; and, (2) if so, whether it appropriately dealt with the “substance” of the Application.

16Grievances were filed by the Intervenor on behalf of the applicant with respect to the April and September 2007 incidents and they were both resolved by the settlements reached by the parties. Does the settlement of a grievance constitute a “proceeding”?

17The Tribunal addressed this issue directly in Dunn v. Sault Ste. Marie (City), 2008 HRTO 149, where it was noted at para. 37:

I will deal with whether a settlement of a matter commenced before a different tribunal may be a “proceeding” that has “dealt with the substance” of the complaints within the meaning of the section. I find that s. 45.1 may apply to settlements of proceedings under other statutory schemes. This conclusion is supported by both the wording and the purposes of s. 45.1. The provision refers to a “proceeding” having “dealt with” the matter, rather than using narrower words that would only encompass adjudication like “decisions” or “reasons”. More important, the purpose of avoiding the duplication of proceedings and ensuring finality in litigation would be severely undercut if the section applied only to decisions. Most litigation ends in settlement. To be effective, settlements must be final, since otherwise the parties would have no incentive to make an agreement to end litigation. An interpretation of s. 45.1 that did not cover settlements would discourage parties from working to resolve human rights proceedings without recourse to litigation.

It was also noted in Dunn that the theme underlying the grievance/arbitration model set out in the Labour Relations Act, 1995, S.O. 1995, c. 1, Sch. A, is the promotion of prompt and informal resolutions of workplace disputes.

18I am satisfied that the settlements with respect to the applicant’s grievances were proceedings under section 45.1.

19The problem for the respondent, as I see it, is that the “substance” of the claims now before the Tribunal – that the deduction of a full sick day and the denial of dental benefits were discriminatory contrary to the Code – do not appear to have been dealt with in the grievance proceedings. I understand that the grievances were resolved informally in that no minutes of settlement were executed and that the sick day and dental benefits were restored; however, there is no indication or, indeed, no suggestion by the parties that the human rights issues were engaged in the proceedings or that they were resolved through the settlement.

20Presumably the settlement proceedings could have engaged the human rights issues. The Code, however does not, in my view, provide the Tribunal with the discretion to dismiss under section 45.1 all or part of an application where the claim(s) being made in an application before the Tribunal could have been raised in “another proceeding”.

21The April and September 2007 allegations will be considered by the Tribunal as they have not been appropriately dealt with through the grievance/arbitration procedure.

22The remaining allegation in the original complaint is the June 2007 incident. It will be considered by the Tribunal.

Removal of personal respondents

23The respondents seek the removal of the personal respondents named in the human rights complaint underlying the Application.

24The applicable principles for removing parties were enunciated in Persaud v. Toronto District School Board, 2008 HRTO 31, at paras 4-5. Having considered those principles, I am satisfied that the personal respondents should be removed. I find that each of the personal respondents was acting in the course of his or her employment with the organisational respondent. The organisational respondent accepted that it is liable for any of the conduct of its employees that may be found in violation of the Code and there is no issue as to its ability to provide a remedy. The style of cause is amended accordingly.

25I am not seized.