HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Aza Huska

Applicant

-and-

Ottawa Police Services Board

Respondent

interim decision

Adjudicator: Michelle Flaherty

Date: February 10, 2012

Citation: 2012 HRTO 298

Indexed as: Huska v. Ottawa Police Services Board

APPEARANCES

Aza Huska, Applicant ) On her own behalf

Ottawa Police Services Board, ) David Patacairk, Counsel Respondent )

[1] This Application, filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”), alleges discrimination in employment based on marital and family status. It also alleges reprisal or threat of reprisal. In essence, the applicant states that the respondent has failed to accommodate her Code-related needs.

[2] The respondent seeks the early dismissal of the Application because the applicant has signed a release that covers the subject-matter of the Application.

[3] The Tribunal conducted a preliminary hearing on February 9, 2012 in order to determine the respondent’s request for early dismissal. I heard oral submissions from the applicant and from counsel for the respondent.

[4] At the outset of the hearing, the parties agreed that the Application raises the following preliminary issues:

a. Is the Application barred from proceeding because of minutes of settlement and a release executed by the applicant?

b. Does the Tribunal have the jurisdiction to enforce minutes of settlement reached in the context of a grievance arbitration?

c. Are there allegations of ongoing discrimination that are not barred from proceeding?

[5] Both parties confirmed that they were prepared to make oral submissions on these three issues. As the parties presented their oral submissions, it became apparent that some of the preliminary issues are no longer in dispute and need not be determined by the Tribunal.

[6] For the reasons that follow, the Application is amended to include an additional allegation of discrimination. The Application may proceed on the basis of the additional allegation only. The applicant has withdrawn allegations of discrimination that were also the subject-matter of a grievance and of minutes of settlement. Because the applicant has also withdrawn her allegations that the respondent breached the minutes of settlement, it is not necessary for me to determine whether I have jurisdiction to enforce the settlement.

THE SCOPE OF THE APPLICATION

[7] The applicant’s association filed a grievance on behalf of the applicant, alleging a failure to accommodate. At the hearing, the applicant agreed that the subject-matter of the grievance mirrors that of the Application. Both relate to the same events and the same time period.

[8] The grievance was resolved in the context of an arbitration proceeding. The applicant acknowledges that she, a representative of her association, and a representative of the respondent signed minutes of settlement in late June 2009. The applicant has made no allegation that the minutes were signed under duress.

[9] The minutes of settlement contain the following release language:

These minutes of settlement shall be in full and complete satisfaction of that grievance and the alleged events shall not form the basis for any further claims against the [respondent] or members of the police service, including a complaint under the Ontario Human Rights Code.

[10] The minutes of settlement also provide that the grievance arbitrator remains seized of the grievance for the sole purpose of resolving any dispute arising out of the implementation of the terms of settlement.

[11] During the course of her oral submissions, the applicant withdrew the allegations in her Application that were also contained in the grievance. She explained that she had provided this information as background, but that she was not seeking to relitigate the grievance.

[12] The applicant also clarified that she is not asking this Tribunal to enforce the minutes of settlement. In particular, she acknowledged that, while the job she was assigned pursuant to the minutes of settlement was less than ideal, it accommodated her Code-related needs. The applicant withdrew the allegation that the respondent had breached minutes of settlement.

[13] The applicant explained that her main concern is that, as of March 2010, the respondent concluded that she no longer required accommodation based on her family status. The applicant states that the respondent has discriminated against her by removing the accommodation measures it had put in place following the minutes of settlement.

[14] The respondent denies these allegations of discrimination. However, there is no dispute that this allegation was not part of the grievance and the respondent does not argue that this allegation is barred by virtue of the minutes of settlement or release.

[15] Counsel for the respondent pointed out that the Application does not currently contain the allegations of discrimination summarized at paragraph 13. While the applicant acknowledged that these allegations are not presently part of the Application, she points out that she did refer to them in her response to the respondent’s request to dismiss.

DECISION

[16] The applicant has withdrawn her allegations that relate to any failure to accommodate up to the execution of the minutes of settlement. She has also withdrawn her allegation that the respondent has breached the minutes of settlement. Accordingly, there is no basis to dismiss the Application because of the minutes of settlement or release. It is also not necessary for me to decide whether or not I have jurisdiction to enforce the minutes of settlement.

[17] I make no finding as to whether the applicant may present contextual evidence at an eventual merits hearing, including evidence concerning events leading up to the settlement agreement. This may be determined by the adjudicator at or in advance of the merits hearing.

[18] The applicant has asked to amend the Application to include the allegations of discrimination set out in paragraph 13, above. The respondent does not oppose the request to amend. In the circumstances, given the respondent’s position and the early stage at which the request to amend is made, I find that it is appropriate to allow the amendment.

[19] The respondent has requested the removal of the personal respondents and the applicant has consented to this request. In the circumstances, I am satisfied that the personal respondents should be removed. The style of cause is amended accordingly.

[20] The applicant has agreed to, within 90 days of the date of this Interim Decision, disclose to the respondent the relevant medical and other documentation upon which she intends to rely to establish her need for accommodation beyond March 2010.

SUMMARY

[21] The applicant’s request to amend the Application is granted.

[22] The personal respondents are removed and the style of cause is amended accordingly.

[23] Given that the applicant has withdrawn the allegations of discrimination that were also raised in the grievance, there is no basis to dismiss the Application because of the release. The Application will proceed solely based on the allegations summarized in paragraph 13, above.

[24] Within 35 days of the date of this Interim Decision, the respondent must file a full Response to the Application, as amended.

[25] Within 90 days of the date of this Interim Decision, the applicant will disclose to the respondent the relevant medical and other documentation upon which she intends to rely to establish her need for accommodation beyond March 2010.

[26] I am not seized of this matter.

Dated at Toronto, this 10th day of February, 2012.

”signed by”

Michelle Flaherty

Vice-chair