Stoyanova v. Toronto District School Board, 2013 HRTO 1008

Human Rights Tribunal of Ontario

B E T W E E N:

Zoya Stoyanova Applicant

-and-

Toronto District School Board and CUPE, Local 4400 Respondents

DECISION

Adjudicator: Dawn J. Kershaw Date: June 6, 2013 Citation: 2013 HRTO 1008 Indexed as: Stoyanova v. Toronto District School Board

Introduction

1This Application was filed on April 8, 2013 under section 34 of the Human Rights Code, R.S.O. 1990, c.H.19 as amended (the "Code"), and alleges discrimination on the grounds of "employment", which she added by handwriting it in the Application. She also alleges reprisal or threat of reprisal.

2On April 22, 2013 the Tribunal issued a Notice of Intent to Dismiss ("NOID") the Application as it appeared that the Application was outside the Tribunal's jurisdiction because:

a review of the Application and the narrative setting out the incidents of alleged discrimination fails to identify any specific acts of discrimination within the meaning of the Code allegedly committed by the respondents.

3The NOID directed the applicant to provide submissions as to whether the Tribunal has the jurisdiction to consider her Application. The applicant provided no written submissions with respect to this issue although she did submit a further Application to replace the original one filed.

4I have reviewed the applicant's Application. The applicant is an Early Childhood Educator (ECE) who alleges she was bumped from her position by a Teaching Assistant (TA) with lesser seniority and qualifications than she has.

ANALYSIS AND DECISION

5An Application will only be dismissed at a preliminary stage, before it is served on the respondent, if it is "plain and obvious" on the face of the application that it does not fall within the Tribunal's jurisdiction. See, for example, Masood v. Bruce Power, 2008 HRTO 381.

6Having considered the applicant's Application, I find that the applicant has failed to identify any act of discrimination that is related to the Code.

7The Application is based entirely on the applicant's allegations that the respondent school board removed the applicant from her position as an ECE and replaced her with a TA lacking the applicant's seniority and qualifications.

8The applicant does not make any allegations of differential treatment on the basis of a ground listed under the Code. The replacement of the applicant appears to stem from a decision made by the respondent CUPE 4400 and the respondent school board to replace the applicant ECE with a TA, and is in the nature of a workplace disagreement unrelated to any ground under the Code. The Tribunal has no power to address allegations of discrimination except on the grounds set out in the Code.

9With respect to the allegation of reprisal, section 8 of the Code states:

Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal.

10To successfully make out a claim of reprisal, the applicant must demonstrate that she experienced reprisal for:

• claiming or enforcing a right under the Code;
• instituting or participating in proceedings under the Code:, or
• refusing to infringe the right of another person.

11Given that the applicant has not asserted that her replacement by the TA was related to a ground under the Code, her attempts to remedy this conduct cannot be said to be either "claiming" or "enforcing" a right under the Code. She also did not allege that she experienced reprisal as a result of instituting or participating in Code proceedings or refusing to infringe the Code rights of another person.

12It is plain and obvious that the Tribunal has no jurisdiction to deal with the Application.

13This Application is dismissed.