HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Susan Johnston Applicant
-and-
York Region District School Board and Ontario Secondary School Teachers’ Federation Respondents
DECISION
Adjudicator: Sherry Liang Date: July 26, 2012 Citation: 2012 HRTO 1465 Indexed as: Johnston v. York Region District School Board
APPEARANCES
Susan Johnston, Applicant ) David Baker, Counsel
York Region District School Board, ) Angela E. Rae, Counsel Respondent )
Ontario Secondary School Teachers’ ) Susan Ursel, Counsel Federation, Respondent )
1This is an Application filed on February 1, 2010 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”).
2The applicant, a teacher, alleges discrimination in employment on the ground of disability, by her employer the York Region District School Board (the Board) and her union, the Ontario Secondary School Teachers’ Federation (the OSSTF). The Application arises out of the termination of the applicant’s employment, by letter dated October 3, 2005. The applicant alleges that the termination, which occurred while she was on disability leave with major depression, was effected on the basis of a discriminatory guideline negotiated between the Board and the OSSTF which provided that an employee was automatically terminated if he or she was approved for long term disability (LTD) benefits beyond two years.
3In her Application the applicant does not identify the “date of the last event” of discrimination in answer to question #7 of the form, but states that it is “ongoing”, and refers to her statement of facts in support of this position. The applicant submits, in the alternative, that the Tribunal should exercise its discretion to accept the Application. As remedy, the applicant requests monetary compensation, repeal of the LTD Guideline and specified public interest remedies.
4As explained in a Case Assessment Direction of November 28, 2011, the Board and the OSSTF sought dismissal of the Application on the basis of delay and I decided to hear the request to dismiss for delay as a preliminary issue. The parties initially appeared before me in a conference call on February 23, 2012, and the submissions were completed in person on March 30, 2012.
5In addition to their oral submissions, the parties filed written materials in connection with the request to dismiss for delay, including Form 10 (Request for an Order During Proceedings (RFOP)), Form 11 (Response to RFOP), various correspondence, and documents and case law.
6For the reasons that follow I find the Application untimely and it is dismissed.
BACKGROUND
7The facts essential to my determinations are found in correspondence and other documents submitted to me by the parties and are not disputed. The parties differ, however, on the interpretation of these facts. Specifically, they disagree on the question of what constitutes the last event of discrimination for the purpose of assessing the timeliness of the Application. The applicant maintains that there is no “last event” per se, as the discrimination is ongoing, even until today. The respondents maintain that the last and, indeed, only event, forming the basis of the Application, is the applicant’s termination from employment in October 2005.
8The applicant also maintains that even if