Bruno v. Toronto Catholic District School Board, 2011 HRTO 1580

Human Rights Tribunal of Ontario

Between:

Rita Bruno Applicant

-and-

Toronto Catholic District School Board Respondent

Interim Decision

Adjudicator: Ena Chadha Date: August 24, 2011 Citation: 2011 HRTO 1580 Indexed as: Bruno v. Toronto Catholic District School Board

1The applicant filed an Application on July 7, 2011, under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code") alleging discrimination and reprisal with respect to employment on the basis of disability and sex. The applicant is a teacher with the respondent school board. The Application narrative sets out a detailed chronology of events commencing in 2003. The events of 2003 concern allegations of sexual harassment. The narrative describes events regarding the applicant's interactions with the respondent school board from 2003 and up to 2011, including allegations of refusal to accommodate and reprisal.

2In her Application, the applicant noted that the facts of the Application were part of two grievances arising out of the alleged events. The applicant provided a copy of a 3 page letter authored by her vocational association to the respondent employer, dated February 18, 2010, setting out the allegations forming the basis of the applicant's second grievance, namely issues of sexual harassment and reprisal.

3On July 26, 2011, the applicant filed a Request to Expedite and Request for Interim Remedy. The applicant asks the Tribunal to order the respondent to rescind the requirement that she teach one class and return her to a full time guidance counseling assignment. The applicant alleges that respondent recently changed her workload contrary to her accommodation plan and that the change in workload is a form of reprisal for pursuing her earlier sexual harassment concerns. The applicant alleges that she will "regress" in her mental health, in that she previously suffered depression, if she is required to undertake the new work assignment.

4On August 5, 2011, the Tribunal refused the applicant's Request to Expedite.

5On August 8, 2011, the Tribunal forwarded a Notice of Application and the Request for Interim Remedy to the respondent. The Tribunal directed the respondent to file a response to the Request for Interim Remedy by August 15, 2011 and its Response (Form 2) by September 12, 2011.

6On August 15, 2011, counsel for the respondent wrote to the Tribunal and advised that she had just returned from holidays on that date. Counsel indicated that the school principal responsible for determining the work assignment issues raised in the Application and the Request for Interim Remedy is absent given summer school closures and, therefore, unable to provide a signed declaration for responding to the Request for Interim Remedy. Counsel for the respondent requested an extension until August 26, 2011 to provide a response to the Request for Interim Remedy. Counsel also offered dates in the end of August for an early mediation.

7On August 15, 2011, the applicant wrote to the Tribunal and advised she opposes the respondent's request for an extension until August 26th because she is required to return to work for August 28th. The applicant pointed out that, although the respondent was willing to offer August mediation dates for the purposes of the Tribunal's process, the respondent was unwilling to set a date for mediation with her vocational association (presumably for the grievance process).

Request for Extension of Time

8The applicant's materials appear to acknowledge that the school principal has a role in what the applicant alleges to be the discriminatory work assignment. As such, it is not disputed that the school principal is responsible for determining the issues raised in the Application and that this individual has information and knowledge necessary to respond to the Request for Interim Remedy. Further, the applicant does not dispute that holidays and school closures constrained availability. As such, it appears that the respondent has valid reasons for requesting an extension of time. Accordingly, the respondent's request for an extension of time is granted in order to allow counsel for the respondent to consult with the school principal.

Delay/Timeliness

9Section 34 of the Code provides:

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 subsection 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.

10The Code clearly states, in section 34(2), that an applicant may not apply to the Tribunal more than a year after the last event giving rise to the Application unless the Tribunal is satisfied that the delay was incurred in good faith. Where the Tribunal is not satisfied that the delay was incurred in good faith and that no substantial prejudice will result to any person affected by the delay, the Tribunal has no power to relieve against the one-year time limit. As such, the question arises whether the Tribunal has jurisdiction with respect to the allegations prior to July 2010.

11The Tribunal determines that it is appropriate to receive written submissions regarding whether or not the applicant is prevented from proceeding with the allegations with respect to events before July 2010 on the basis of delay and whether any delay was incurred in good faith or will result in substantial prejudice.

Deferral

12Based on the information in the file, it appears that the applicant has outstanding grievances in relation to the facts alleged in the Application. Given the possibility of concurrent proceedings, and thereby the potential for inconsistent findings of fact and law, the Tribunal requires clarification of the status of the applicant's grievances. The Tribunal finds that the most fair, just and expeditious approach is to obtain written submissions from the parties with respect to whether or not this Application should be deferred.

Order

13The Tribunal orders as follows:

i) The respondent's request for an extension of time to file a response to the Request for Interim Remedy is granted. The respondent required to file its response to Request for Interim Remedy on August 26, 2011;

ii) All parties (and affected party if it wishes to do so) are required to provide to the Tribunal and copied to each other, within 21 days of this Interim Decision, written submissions, any supporting documents and legal authorities regarding the following:

1. Does the Tribunal have jurisdiction with respect to the allegations regarding events prior to July 2010?

In particular, parties are required to address what was the date of the last incident or series of incidents to which the Application relates and whether the delay in filing the Application was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

2. Should the Application be deferred?

In particular, parties are required to address what is the nature and status of the applicant's grievances? Specifically, are the grievances on-going or completed? If completed and/or resolved, what was the nature, terms and conditions of the completion/resolution and exactly what was completed/resolved and what remains outstanding? If any grievance is alive, what is the nature of the grievance and what stage is the grievance at?

14The Tribunal will consider the parties' written submissions, and may determine the issues based on the parties' submissions, and/or may schedule future steps accordingly. The OECTA has been identified as an affected organization and will be provided with a copy of this decision.

15I am not seized.