Anderson v. Attawapiskat First Nations Education Authority, 2012 HRTO 2256

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Valerie Anderson

Applicant

-and-

Attawapiskat First Nations Education Authority, Attawapiskat First Nations Education Authority Vezina Secondary School , Maryann Davis and Oral Travers

Respondents

INTERIM DECISION

Adjudicator: Judith Keene

Date: December 3, 2012

Citation: 2012 HRTO 2256

Indexed as: Anderson v. Attawapiskat First Nations Education Authority

INTRODUCTION

1This is an Interim Decision in respect of an Application filed on August 18, 2011 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of colour, disability and race. This Interim Decision deals with the issue of whether the Application should be deferred pending the completion of related proceedings. Based on the information in the file, I have decided not to defer the Application. However, the applicant is required to send the Tribunal certain written information within thirty days of the date of this Interim Decision, as set out in the Order below.

2The Application alleges that she was subjected to racist verbal and written abuse that went unaddressed by the respondent, an unreasonable request to vacate her housing and relocate to housing that would trigger her allergies, and a dismissal from employment that violated s.5 of the Code.

3On March 19, 2012, the Tribunal issued a Notice of Application to the respondents in which it directed that a Response or Responses to the Application must be filed with the Tribunal not later than April 23, 2012. By Interim Decision dated July 4, 2012, (2012 HRTO 1318), the respondent was directed to respond by July 14, 2012 and informed that, if it did not file a Response “the Tribunal may proceed without further notice to the respondent and may take any or all of the steps set out in Rule 5.5”. To date, the respondent has not filed a Response, nor has the Tribunal’s correspondence to it been returned.

4In her Application, the applicant indicated that she had filed a claim under Part III of the Canada Labour Code, R.S.C. 1985, c. L-2. filed on July 30, 2011. The Canada Labour Code application states that the applicant “was fired because of my medical condition”. In her Application, the applicant stated “I do not want the Tribunal to defer since this is a human rights issue [and] the Canada Labour Code only deals with the unjust dismissal issue and does not address the majority of my complaint of discrimination and harassment”. Attached to the Application is a copy of a letter from an Inspector to the respondent, dated September 27, 2011, forwarding the complaint and requesting reasons for the dismissal.

5On August 13, 2012, the Tribunal sent the parties a Notice of Intent to Defer pending the resolution of another legal proceeding dealing with the subject-matter of the Application. The Notice asked for submissions from the parties no later than September 13, 2012. No submissions have been received from the parties, and the date for submissions has passed.

6The Supreme Court of Canada has confirmed that human rights tribunals are not the only decision-makers that can decide whether the Code has been breached (Tranchemontagne v. Ontario (Director, Disability Support Program), 2006 SCC 14. Where the parties are already engaged in a concurrent legal proceeding in which they are raising the same human rights issues before a decision-making body with the authority to make determinations about those issues, the orderly administration of justice favours deferral to the other proceeding. In my view, if the Canada Industrial Relations Board has jurisdiction over the circumstances of the applicant’s employment with the respondent, it has jurisdiction to deal with all allegations that are the subject of this Application. In such a scenario, the Tribunal’s normal approach is to defer to the other proceeding.

7Having said that, it is clear that the applicant’s claim of discrimination based on alleged racist verbal and written abuse that went unaddressed by the respondent is not part of her complaint under the Canada Labour Code. Further, as noted above, the respondent did not respond to the Tribunal’s Notice, and there is no indication from either party as to whether the Canada Industrial Relations Board has determined that it has jurisdiction, and, if so, the stage at which proceedings under the Canada Labour Code may be.

8At this point, it is over a year since the Application was filed, and it is not plain and obvious that proceedings before this Tribunal should be deferred. While in my view the circumstances warrant moving the Application toward a hearing, it is clear that there may be an issue of jurisdiction that must be addressed as soon as possible. It is possible that all or part of the subject-matter of this Application is a matter of federal jurisdiction, or, in the alternative, that all or part of this Application should be deferred. The Order below will address this situation.

9In Kearns v. 1327827 Ontario, 2009 HRTO 457, the Tribunal set out its approach in circumstances where a respondent fails to file a Response after having been cautioned, and the rationale for that approach. At paragraphs 11-14, the Tribunal noted that the enforcement procedures prescribed by the Code are important mechanisms available to the public for claiming and enforcing fundamental human rights. These enforcement procedures also provide a clear means for respondents to explain and defend against human rights allegations.

10The Tribunal in Kearns noted that where no response is filed and the Tribunal is satisfied the respondent has received notice, the Tribunal will proceed to determine the application in the absence of the respondent. In such circumstances, the Tribunal will deem the respondent to have waived its right to participate pursuant to Rule 5.5(c) and deem the respondent to have accepted all of the allegations set out in the application pursuant to Rule 5.5(a).

11The respondent has not filed a Response despite having received the Notice of the Application and an Interim Decision ordering the respondent to file a Response. Neither the Notice of Application nor the Interim Decision has been returned to the Tribunal as undeliverable. I am satisfied that the respondent has received notice of the Application and notice of the Tribunal’s Order directing it to file a Response. It appears that the respondent refuses or has chosen not to participate in these proceedings, notwithstanding being alerted of the implications of Rule 5.5.

12In these circumstances, the Tribunal orders that the respondent is deemed to have waived all rights with respect to further notice or participation in the proceeding. The Tribunal will proceed without the participation of the respondent and deems the respondent to have waived its right to participate pursuant to Rule 5.5(c) and further deems the respondent to have accepted all of the allegations set out in the Application pursuant to Rule 5.5(a).

13This Interim Decision will be sent to all parties. The Application will be scheduled for a hearing. The applicant will be required to file with the Tribunal information that updates the status of her complaint under the Canada Labour Code, including whether she has applied to amend her complaint to include the allegation of racist abuse. The Vice-Chair assigned to the hearing is the best person to hear any further facts about the applicant’s complaint under the Canada Labour Code, and what, if any impact it will have on this Application.

ORDER

14This Interim Decision will be sent to both parties. The Application will be scheduled for a hearing.

15The applicant is directed to send written information to the Tribunal that indicates the progress to date of her complaint under the Canada Labour Code, including whether she has applied to amend her complaint to include the allegation of racist abuse. The applicant must send this information within thirty days of the date of this Interim Decision. If the applicant does not send the required information, her Application may be dismissed as abandoned.

16The respondent is deemed to have waived all rights with respect to further notice or participation in the proceeding. The Tribunal will proceed without the participation of the respondent and deems the respondent to have waived its right to participate pursuant to Rule 5.5(c) and further deems the respondent to have accepted all of the allegations set out in the Application pursuant to Rule 5.5(a).

17I am not seized.