Robert Vinodolac v. Dufferin-Peel Catholic District School Board and Joanna Boudreau, 2012 HRTO 274

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Robert Vinodolac

Applicant

-and-

Dufferin-Peel Catholic District School Board and Joanna Boudreau

Respondents

DECISION

Adjudicator: Brian Eyolfson

Date: February 8, 2012

Citation: 2012 HRTO 274

Indexed as: Vinodolac v. Dufferin Peel Catholic District School Board

APPEARANCES

Robert Vinodolac, Applicant ) Self-represented

Dufferin-Peel Catholic District School ) Jennifer Trépanier, Counsel Board and Joanna Boudreau, Respondents )

Ontario English Catholic ) Bernie Hanson, Counsel Teachers’ Association )

INTRODUCTION

1This Application was filed on March 20, 2009, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). In the Application, the applicant alleges that he was subjected to discrimination on the basis of sex, including sexual harassment and solicitation or advances in employment.

2The applicant indicated in his Application that the facts of the Application were part of a grievance proceeding that was in progress. He requested that the Tribunal defer his Application until the grievance proceeding was completed. In their Response to the Application, the respondents also requested that the Application be deferred pending the completion of the grievance proceeding. The respondents enclosed with their Response a copy of a grievance, dated February 10, 2008, filed on behalf of the applicant by the Ontario English Catholic Teachers’ Association (“OECTA”).

3In an Interim Decision dated July 16, 2009, 2009 HRTO 1055, the Tribunal determined that it was appropriate to defer the Application pending completion of the grievance proceeding. The Tribunal directed the parties’ attention to Rules 14.3 and 14.4 of the Tribunal’s Rules of Procedure which outline how the Application could be brought back on after the conclusion of the grievance process.

4On November 16, 2010, the Tribunal wrote to the applicant, requiring the applicant to advise the Tribunal as to the status of the grievance proceeding, within 30 days. The Tribunal’s letter indicated that if the applicant failed to respond as directed, the Tribunal may dismiss the Application as abandoned.

REQUEST FOR ORDER DURING PROCEEDINGS

5In an email to the Tribunal, dated November 25, 2010, the applicant advised the Tribunal that he would like to have his Application brought back before the Tribunal as his union “dismissed” the grievance. On December 3, 2010, the applicant filed with the Tribunal and delivered to OECTA a Request for an Order During Proceedings (“Request”) seeking, among other things, re-activation of his deferred Application. The applicant later filed a Statement of Delivery indicating that the Request was delivered to the Respondents on December 15, 2010.

6On December 29, 2010, the respondents filed a Response to the applicant’s Request. In their Response, the respondents submit that OECTA advised the applicant and the respondents, by letter dated May 4, 2010, that the applicant’s grievance was withdrawn, without prejudice to any rights the applicant may have in any other forum. Referring to Rule 14.4 of the Tribunal’s Rules, the respondents submit that the applicant had 60 days from May 4, 2010, to file a request to re-activate his Application but failed to do so. They submit that there is a significant time delay, during which the applicant made no indication of his intention to re-activate his Application. The respondents submit that the applicant had ample opportunity to contact the Tribunal and the respondents within the limitation period to preserve his rights to re-activate the Application. They submit that the delay prejudices their ability to give evidence to defend the applicant’s allegations, as the allegations and defence shall largely be predicated on the recollection of the witnesses to be called by the parties. They submit that, given the inordinate delay, this is not an appropriate occasion for the Tribunal to exercise its discretion to lengthen time limits in the Tribunal’s Rules.

7The Tribunal provided the applicant with an opportunity to make written submissions with respect to the issue of delay raised by the respondents in their Response to the applicant’s Request. On April 18, 2011, the Tribunal received submissions from the applicant, dated April 15, 2011, and copied to the respondents and OECTA. In his submissions, the applicant states that he requested an appeal of OECTA’s May 4, 2010 decision to “dismiss” his grievance, and that “the possibility of an appeal” was dismissed on October 25, 2010. The applicant submits, therefore, that he filed his Request within the 60-day timeframe.

8The applicant provided copies of email correspondence between himself and OECTA. In an email dated June 1, 2010, a representative of OECTA, Mr. Diciocco, advises the applicant, among other things, that his “harassment grievance has been closed”. In an email dated June 8, 2010 to Mr. Diciocco, the applicant states that he disagrees with the rationale that he received on April 30, 2010, and that he intends to challenge the “dismissal” of the grievance and would like to know if any options are available to him regarding legal support. In an email dated June 9, 2010, Mr. Diciocco advises the applicant, in part, as follows:

There are no additional options available through OECTA because a decision was made to withdraw the grievance and the grievance was withdrawn. The grievance is closed and OECTA will not approve the allocation of additional resources to deal with the issue.

9In a subsequent email dated June 9, 2010, to Mr. Diciocco, the applicant inquires if he can appeal the decision. In an email dated June 10, 2010, Mr. Diciocco refers the applicant to his “Department Head”, Mr. Chudak, and advises the applicant that Mr. Chudak will review his concerns. In an email dated June 11, 2010, to Mr. Chudak, the applicant states that he is interested to know if he can appeal the decision to “dismiss” his grievance. In an email dated June 11, 2010, Mr. Chudak advises the applicant that he will “investigate the situation” and contact the applicant.

10The applicant submits that Mr. Chudak did not contact him for three months so he sent an email asking what the status was on October 20, 2010, and received a response the same day; however, the applicant did not provide a copy of an email to Mr. Chudak dated October 20, 2008, and the responding email that the applicant refers to is dated October 28, 2010. In the email, Mr. Chudak advises the applicant, in part, as follows: “To reiterate, the investigation of your complaint indicated that your alleged grievance was handled properly and within the bounds of our normal practice.” Mr. Chudak also refers to the applicant’s desire to take the matter to the “Labour Board” and states that OECTA will oppose any application to that body on the grounds of unreasonable delay.

HEARING

11In the circumstances, the Tribunal determined that it was appropriate to schedule a telephone conference call hearing with the parties to address the issues raised in the applicant’s Request and the respondents’ Response to the Request. OECTA was also given notice of the hearing and participated with the parties on November 14, 2011.

12At the hearing, the applicant disagreed that there was a delay and submitted that the union was looking at the matter. Later in his submissions, the applicant stated that he was told his grievance was “dismissed”, he asked if he could appeal and was told “sure you can appeal it.” He then waited three or four months and was told that he could not appeal.

13The respondents reiterated that the applicant did not comply with the Tribunal’s direction in its Interim Decision regarding re-activation of his Application, did not make inquiries as to how preserve his rights, and did not contact the organizational respondent. They note that the applicant made his request to re-activate his Application shortly after receiving the Tribunal’s November 16, 2010 letter requiring that he advise the Tribunal as to the status of his grievance within 30 days. In raising prejudice, the respondents submitted that the Application contains allegations as far back as September 2003, and that the allegations concerning the individual respondent relate to the 2007/2008 school year.

14OECTA submitted that its May 4, 2010 correspondence to the parties expressly withdrawing the grievance ended the grievance process on that date, thereby commencing the time to request re-activation of the Application. OECTA also submitted that the subsequent email correspondence between the applicant and OECTA related to an internal investigation of OECTA, and that Mr. Chudak indicating that he would “investigate the situation” was purely an internal matter. OECTA also submitted that, having withdrawn the grievance, an internal investigation could not have re-activated the grievance, without the cooperation of the respondents. OECTA confirmed that neither the respondents nor the applicant were ever advised at any point by OECTA that OECTA was reconsidering its decision to withdraw the grievance.

DECISION

15The Tribunal’s Interim Decision deferring the Application pending completion of the grievance proceeding directed the applicant’s attention to Rules 14.3 and 14.4 of the Tribunal’s Rules, which outline how the Application could be brought back on after the conclusion of the grievance process. In particular, Rule 14.4 requires that a request to proceed with a deferred Application be filed no later than 60 days after the conclusion of the other proceeding. While the Tribunal has the power to waive the strict application of its Rules, there must be a good reason to do so: See Baker v. Kingston Hospital, 2009 HRTO 2079, at para. 6. In my view, for the reasons that follow, it would not be appropriate to exercise my discretion to relieve against the application of the timeline set out in Rule 14.4 of the Tribunal’s Rules in the present case.

16OECTA advised the applicant and the respondents by letter dated May 4, 2010, that the applicant’s grievance with withdrawn, without prejudice to any rights the applicant may have in any other forum. From his own materials, it appears that the applicant was aware of OECTA’s decision regarding his grievance as early as April 30, 2010. The applicant did not advise the Tribunal that he wished to proceed with his Application until November 25, 2010. He also did not deliver his request to re-activate his Application to the respondents until December 15, 2010, approximately seven and a half months after the parties were advised by OECTA that the grievance was withdrawn.

17The applicant submits that he requested an appeal of the May 4, 2010 decision by OECTA to “dismiss” his grievance and that Mr. Chudak “dismissed the possibility of an appeal” on October 25, 2010. The applicant submits, therefore, that he filed his Request within the 60-day timeframe.

18In my view, the applicant’s position is not reasonable in the circumstances. The parties were clearly advised by letter dated May 4, 2010 that the grievance was withdrawn. The applicant was also advised by OECTA on June 1, 2010 that his grievance had been closed. Further, he was clearly advised by OECTA on June 9, 2010 that his grievance was withdrawn and closed, and that there were no additional options available through OECTA. The applicant nevertheless made subsequent inquiries to OECTA about the possibility of appealing the decision to dismiss his grievance. He submits that he did not hear from Mr. Chudak for three or four months. While it appears that the applicant did not provide copies of all his email communications with OECTA during the relevant time period, based on his submissions and the materials he did provide, it appears that the applicant waited more than four months before contacting Mr. Chudak again. Furthermore, Mr. Chudak’s October 28, 2010 email, and other responding emails from OECTA that the applicant refers to, appear to address the applicant’s complaint or concerns regarding the handling of his grievance by OECTA, as opposed to his inquiry about the possibility of appealing OECTA’s decision. There does not appear to be any mention of an appeal process in OECTA’s emails.

19I note that the applicant submitted at the hearing that he was told that he could appeal; however, I find that the applicant’s assertion in this regard is entirely inconsistent with his earlier written submissions and the documents he provided. I do not find that the applicant was ever told by OECTA that he could appeal the decision to withdraw his grievance.

20In addition, it is clear that during the relevant time period the respondents had no knowledge that the applicant was making any inquiries about the possibility of appealing OECTA’s decision to withdraw his grievance, or that the applicant wished to seek re-activation of his Application with the Tribunal. I accept that the respondents not receiving notice that the applicant wished to reactivate his Application until more than five months after the expiry of the 60-day time limitation in the Tribunal’s Rules may result in some prejudice to the respondents.

21In my view, it was not reasonable for the applicant to wait as long as he did to deliver and file his Request to re-activate his Application in the circumstances. The Request to re-activate the Application is dismissed, and the Application is therefore dismissed.

22It is not necessary for me to consider the remaining aspects of the applicant’s Request.