Raj Pannu v. Peel District School Board and Elementary Teachers’ Federation of Ontario, 2011 HRTO 801

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Raj Pannu

Applicant

-and-

Peel District School Board and Elementary Teachers’ Federation of Ontario

Respondents

INTERIM DECISION

Adjudicator: Sherry Liang

Date: April 21, 2011

Citation: 2011 HRTO 801

Indexed as: Pannu v. Peel District School Board

WRITTEN SUBMISSIONS

Raj Pannu, Applicant ) Self-represented

Peel District School Board, Respondent ) Roy C. Filion, Counsel

Elementary Teachers’ Federation ) Mark Wright, Counsel

of Ontario, Respondent )

1This is an Application filed on July 2, 2010, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The Application alleges discrimination and harassment in employment starting in 1998, on the ground of disability, as well as reprisal under the Code.

3The respondents, the Peel District School Board (the “Board”) and the Elementary Teachers Federation of Ontario (the “Union”), have requested dismissal of the Application on the basis that its subject-matter is substantially the same as complaints filed with the Ontario Human Rights Commission (the “Commission”) [section 53(8)]; that other proceedings in whole or in part have appropriately dealt with the substance of the Application [section 45.1], that it is untimely [section 34(1)] and that it is an abuse of process. The respondents also submit that the Application fails to disclose any prima facie case of discrimination against the respondent Union.

4The Requests to dismiss were detailed in the Responses, as well as in a Request for an Order During Proceedings and Request for Summary Hearing filed by the Union. They are based, among other things, on complaints filed with the Commission on March 12, 1999, and March 5, 2007, the Tribunal’s decision in Pannu v. Peel District School Board, 2010 HRTO 1233, and on two settlements signed by the applicant and the respondents on April 28, 2006, and January 31, 2008.

5By Case Assessment Direction dated January 21, 2011, in response to the applicant’s Request to extend the time for filing her Responses to the Requests, the applicant was directed to provide her submissions by Friday, February 4, 2011. She has not filed any submissions.

BACKGROUND

6The Application describes events starting in 1993, when the applicant was hired as a teacher of English as a Second Language (ESL) in elementary school. She alleges in her Application that her employer has “systematically harassed, discriminated and subjected me to reprisals since 1998.” The applicant states that “the continual harassment was in the form of vexatious conduct, comment and a surveillance through a private investigator of my personal life from Sept. 2007 to June 2009.”

7Elsewhere, the applicant alleges she faced barriers in advancement due to her ethnic origin, referring to efforts to be promoted between about 1994 and 1997. The Application refers to alleged poor working conditions at Roberta Bondar Public School in 2007, and harassment from the principal. The narrative in the Application also alleges an improper phone call to her doctor’s office in February 2008 and an allegedly defamatory letter from a Board Superintendent in May 2008.

8The applicant alleges that the Board failed to properly accommodate her disabilities with respect to a teaching assignment in September 2008. Finally, the applicant alleges that following an injury in February 2009, the Board improperly refused to accept medical certificates from her family doctor, and encloses a letter dated June 1, 2009.

9In her answer to Question 7(c) on the Application form, the applicant states that the date of the last event was June 30, 2009, although it is not clear from her narrative what event occurred on June 30, 2009. She states at one point in her narrative that the respondent Board “failed to accommodate me in my permanent position till today”.

10She alleges, with respect to the Union, that it has been a “silent spectator of the malicious and illegal actions of the employer” and “failed to comply with their duty to protect me from discrimination, reprisals, harassment” from the Board.

11Although the applicant stated “no” in answer to Question 13 on the Application form, which asks whether she has ever filed a complaint with the Commission based on the same facts as this Application, it appears that she has filed three complaints with the Commission. In the first, dated March 12, 1999, the applicant alleges discrimination in promotional opportunities on the grounds of race, ethnic origin and place of origin, refusal to provide accommodation of a disability at the workplace, and reprisal. In December 2001, the Commission decided not to refer the complaint to the board of inquiry.

12As described in Pannu, above, the applicant was out of the workplace on an extended medical leave from approximately October 1998 to May 2006. In anticipation of a return to work, the applicant, the Union and the Board had discussions about an appropriate work placement. Disagreements about the nature of an appropriate accommodation, among other things, led to the filing of a grievance by the Union in October 2005. The grievance alleged discipline without just cause and a failure by the Board to meet its obligations under the Code.

13The grievance resulted in Minutes of Settlement dated April 28, 2006. Following the settlement, and as described in Pannu, disputes about an appropriate work placement for the applicant led to the filing of two further human rights complaints against the Board and the Union on March 5, 2007. The applicant states in those complaints that

The grievance arbitration process has not resolved the issues raised by my human rights grievance against the Board in the fall of 2004. The underlying events of discrimination and harassment have continued against me.

I feel that I have been shut out of the accommodation process by both parties’ unwillingness to respond to accommodate me in the workplace up to the point of undue hardship… the Board has continually failed to recognise my medical restrictions. The Union has accepted the Board’s justification for my absence without question. In the meantime, my financial welfare and emotional well-being are at risk as I face further uncertainty as a result of both parties’ continuing failure to accommodate me at work due to my disability.

14These complaints became the basis of Applications filed with the Tribunal under the provisions of section 53(3) of the Code (the “Transition Applications”). In Pannu, the Tribunal dismissed the Transition Applications under section 45.1 of the Code, finding that the substance of the Applications had been appropriately dealt with through the grievance proceeding that resulted in the two sets of Minutes of Settlement.

DECISION

15Section 53(8) of the Code provides:

No application, other than an application under subsection (3) or (5), may be made to the Tribunal if the subject-matter of the application is the same or substantially the same as the subject-matter of a complaint that was filed with the Commission under the old Part IV.

16The effect of section 53(8) is that an applicant may not file an application to the Tribunal under section 34 of the Code if it is based on the same or substantially same subject-matter as a complaint previously filed with the Commission. On the material before me, it is clear that the subject-matter of much of this Application is the same or substantially the same as the subject-matter of the complaints filed with the Commission on March 13, 1999, and March 5, 2007. The Application and the prior complaints allege discrimination, harassment, a failure to accommodate and reprisals in the workplace based on the applicant’s disability and, in the case of the prior complaints, disability as well as race, ethnic origin and place of origin.

17There remains the question of what events, or time period, are covered by this determination. As indicated above, the applicant filed complaints with the Commission in 1999 and 2007. The 2007 complaints alleged, among other things, that the Board had “continually failed to recognise my medical restrictions” and the Union “accepted the Board’s justifications for my absence without question.”

18By the time these complaints came before the Tribunal in the form of the Transition Applications, there had been further dealings between the parties in relation to the applicant’s disability-related claim for accommodation. In Pannu, the Tribunal describes events following the 2007 complaints, including the applicant’s placement in a full time ESL position in September 2008 and her departure from the workplace in February 2009 following another injury.

19As indicated above, the Tribunal found in Pannu that the subject-matter of these complaints had been appropriately dealt with through the grievance process and, specifically, through settlements reached in April 2006 and January 2008. Based on the Tribunal’s decision in Pannu, and its description of the facts before it, I find that the “subject-matter” of the 2007 complaints extends to events up to the grievance settlement of January 2008.

20I therefore find that the applicant cannot proceed with the Application to the extent that it raises any events up to January 2008, because of section 53(8) of the Code. These matters are outside the jurisdiction of the Tribunal to consider.

21Because of my determination, it is not necessary to consider the other grounds on which the Board and the Union seek dismissal of the Application in relation to pre-January 2008 allegations. It remains to consider those arguments in relation to allegations about events following January 2008.

22As indicated, the respondents have requested dismissal based on section 45.1, undue delay, abuse of process, and failure to raise a prima facie case against the Union. Section 43(2) of the Code provides that the Tribunal shall not finally dispose of an Application within its jurisdiction without affording the parties a chance to make oral submissions.

23The Tribunal will therefore schedule a hearing by conference call to receive the parties’ submissions on whether the remainder of the Application, concerning events following January 2008, should be dismissed against either of the respondents.

24The allegations in the Application require some clarification before the conference call. Detail is provided for some events but other aspects are in the nature of broad and unparticularized allegations. The Tribunal therefore directs the applicant to provide particulars of the alleged discrimination and harassment following January 2008, as well as an explanation for why she did not file the Application until July 2010.

25Given the Tribunal’s determinations disposing of part of the Application, the respondents may, following receipt of the particulars, provide additional submissions with respect to their Requests to have the remaining allegations dismissed.

26The Tribunal therefore directs as follows:

a. A two-hour conference call hearing will be scheduled to receive the parties’ submissions on the respondents’ Requests to dismiss the Application, in relation to allegations about events following January 31, 2008;

b. No later than three weeks from the date of this Interim Decision, the applicant shall deliver to the respondents and file with the Tribunal a statement of particulars setting out every action, event or communication that she alleges is an incident of discrimination or harassment after January 31, 2008, including details of the person(s) involved, the date and place of each incident;

c. No later than three weeks prior to the conference call, the respondents shall deliver to the applicant and file with the Tribunal a summary of the grounds on which they seek dismissal of the remainder of the Application;

27I am not seized of this matter.