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
WRITTEN SUBMISSIONS
Z.S., Applicant ) Self-represented
Lorraine Pelletier, Respondent ) Lise Leduc, Counsel
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 in the provision of goods and services.
2In essence, the applicant alleges that the personal respondent, a teacher employed by the organizational respondent, failed to take her daughter’s illness seriously and made discriminatory comments regarding her daughter’s race, colour, and place of origin.
3The respondents deny the allegations of discrimination.
4The individual respondent, Lorraine Pelletier, filed a Response in which she seeks the dismissal of the Application pursuant to section 45.1 of the Code because a grievance proceeding and/or a complaint filed with the Ontario College of Teachers (“College”) has appropriately dealt with the substance of the Application.
5The applicant and Pelletier have filed written submissions regarding the dismissal issue. The applicant has indicated that she does not wish to make oral submissions and has asked that the Tribunal determine the dismissal issue on the basis of the written submissions filed by the parties.
REQUEST TO DISMISS
6Section 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.
7For section 45.1 to apply, the respondent must demonstrate that:
a. the grievance 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.
The grievance
8The incidents giving rise to this Application lead the Conseil scolaire de district des écoles catholiques du Sud-Ouest (“Conseil”) to impose disciplinary measures on Pelletier. Pelletier initially received a written warning, which she grieved. The grievance was ultimately resolved and, as part of the terms of the settlement, the written warning was converted into a verbal warning.
9Pelletier argues that the grievance regarding the written warning is a proceeding that appropriately dealt with the substance of the Application.
10I do not accept this argument. While the grievance and the Application arose out of the same factual context, they raise very different issues and involve different parties. There is no basis for me to conclude that the grievance settlement addressed the human rights issues raised in the Application.
11First, the subject-matter of the grievance is quite different from that of the Application. The grievance appears to deal only with the appropriateness of the disciplinary measures imposed upon Pelletier. Conversely, the issues raised in the Application relate to whether the applicant’s human rights were violated.
12Second, the applicant was not a party to the grievance and did not participate in the mediation. While it is not necessary for me to decide this, it is not clear to me that the issues raised in the Application could be appropriately dealt with (for the purposes of section 45.1) in the applicant’s absence, in a proceeding where she had no standing or ability to participate.
13For these reasons, the Request to dismiss the Application on the basis of the grievance settlement is denied.
College Complaint
14The applicant filed a complaint regarding Pelletier with the College. That complaint arises out of the same incidents giving rise to this Application and raises many of the same issues.
15On August 10, 2010, the College decided not to take any disciplinary action against Pelletier. However, it concluded:
(...) the Member agrees that her comments could be interpreted as inappropriate and, in this respect, accepts responsibility for them. The Member reiterated this statement in a letter of apology to the parent and student involved. The Committee noted there was some confusion concerning what was allegedly said during the incident. There is agreement, however, that a comment was made that was hurtful to the student.
In the Investigation Committee’s opinion, the information at its disposal raises concerns about the Member’s conduct. As a result, the Committee reminds her that she must use appropriate techniques to ensure student health and safety. The Committee further reminds her that she must demonstrate good judgement in all circumstances and avoid making comments that could be considered discriminatory.
16Pelletier contends that the College appropriately dealt with the substance of the Application and that the Application should be dismissed as a result.
17The applicant does not dispute that the College complaint may be a proceeding within the meaning of section 45.1 of the Code. However, she argues that the College did not consider the human rights issues raised in the Application and, therefore, that it did not appropriately deal with the subject matter of the Application.
18The applicant argues that, while the College concluded that Pelletier’s statements were inappropriate and of concern, it did not determine whether they breached the Code.
19The applicant states that College’s constituting statute, Ontario College of Teachers Act, 1996, S.O. c. 12 (“Act”) and its regulations provide that the College may determine whether a member’s behaviour constitutes “professional misconduct”. The Act and its regulations do not expressly prohibit discriminatory conduct, nor do they explicitly incorporate the Code. The applicant argues that, in determining whether Pelletier engaged in professional misconduct, the College did not apply human rights principles. Indeed, while the College found that Pelletier’s comments were inappropriate, it did not specifically determine whether they were discriminatory within the meaning of the Code.
20It is not necessary for me to determine whether the College complaint process constitutes a proceeding within the meaning of section 45.1 of the Code. I find that the College did not appropriately deal with the substance of the Application and, therefore, it is not appropriate to dismiss the Application on this basis.
21The onus falls on the party seeking to rely upon section 45.1 to show that the other proceeding appropriately dealt with the subject matter of the Application and that it considered human rights principles. See, for example, Byaruhanga v. Toronto Police Services Board, 2010 HRTO 2273.
22In this case, while the College may have been sensitive to whether Pelletier’s comments were discriminatory or could have been interpreted as such, it did not make any findings in this regard.
23Based on the materials before me, I cannot conclude that the College considered the facts in light of human rights principles or even addressed the central issues of this Application, namely whether the alleged comments were discriminatory or whether any failure to react appropriately to the applicant’s illness was based on a Code-related ground.
24The Request to dismiss is denied.
25I am not seized of this matter.
Dated at Toronto, this 22nd day of February, 2011.
”signed by”__________
Michelle Flaherty
Vice-chair