Cordes v. Thunder Bay Catholic District School Board, 2013 HRTO 652

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Marie Cordes

Applicant

-and-

Thunder Bay Catholic District School Board

Respondent

-and-

Ontario Secondary School Teachers Federation

Intervenor

INTERIM DECISION

Adjudicator: Paul Aterman Date: April 18, 2013 Citation: 2013 HRTO 652 Indexed as: Cordes v. Thunder Bay Catholic District School Board

WRITTEN SUBMISSIONS

Marie Cordes, Applicant Mary Catherine Chambers, Counsel

Thunder Bay Catholic District School Board, Respondent Garth O’Neill, Counsel

Ontario Secondary School Teachers Federation, Intervenor Joshua Phillips, Counsel

Introduction

1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of disability. Reprisal is also alleged. The applicant maintains that she was dismissed from her employment because of her advocacy for a disabled pupil at one of the respondent’s schools.

2This Interim Decision deals with two Requests. The respondent has requested that the Tribunal dismiss the Application because of pending proceedings before the Ontario Labour Relations Board (“OLRB”), or in the alternative to defer consideration of it pending the resolution of the OLRB proceedings. The Ontario Secondary School Teachers Federation (“OSSTF”) has requested intervenor status in the Application.

3For the reasons set out below, the first request is denied and the second request is granted.

background

4The applicant was employed with the respondent as a probationary Student Support Person (“SSP”), starting in October of 2011. She was a member of the OSSTF. Her work consisted of providing classroom support and assistance to pupils with special educational needs. The SSPs take direction in the classroom from the teacher.

5The applicant took issue with how other SSPs and the teacher approached the treatment of a young pupil with autism. Her concerns became the subject of a meeting on December 5, 2011 at which the applicant, two other SSPs, the school principal and a union representative took part. The applicant alleges that the meeting did not result in any direction to SSPs as to how to address the needs of the pupil. She further alleges that on December 16, 2011 the pupil was treated in such a manner by other SSPs and the teacher that she became so upset that she had to leave work. She maintains that she told the teacher and the teacher allowed her to go home.

6Following this incident the applicant was told to remain at home while the incident was investigated. In January of 2012 the respondent terminated her employment on the ground that she had abandoned her work without permission on the date of the incident.

7The collective agreement provides that the termination of a probationary employee will not be grieved provided that the employer has acted in good faith. The union filed a grievance, which proceeded to the third step of the grievance process and was denied by the respondent. At that point the union decided to proceed no further with the grievance. The applicant appealed this decision within the union, but the union maintained its position. The applicant then filed an application to the OLRB alleging a breach by the union of its duty of fair representation under s.74 of the Labour Relations Act, 1995, S.O. 1995 c.1 (“the LRA”). That application is pending.

submissions

Request to Dismiss or Defer

8The respondent requests that this Application be dismissed or consideration of it be deferred until the OLRB proceedings have concluded. It maintains that the issues in this Application are essentially the same as those before the OLRB and that the OLRB is a more appropriate forum to resolve those issues.

9The applicant opposes this Request. It argues that while both proceedings arise out of the same set of facts, the inquiries by the OLRB and the Tribunal are quite different. This Application alleges discrimination by the respondent, whereas the OLRB application alleges a failure by the union to adhere to its statutory duty. The applicant argues that human rights issues are not engaged in the OLRB proceedings and the OLRB will not rule on such issues.

Union Request to Intervene

10The union wishes to intervene in this Application in order to address any issue relating to what information was provided to the union about the events that gave rise to the Application and how the union responded. It also wishes to address the issue of any remedy the Tribunal might award. Neither party has taken a position on the union’s request.

analysis

Request to Defer or Dismiss

11While s.45.1 the Code provides that the Tribunal “may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application”, there is no indication that the OLRB has dealt with anything yet. The duty of fair representation complaint appears to still be outstanding. For this reason the Tribunal will not dismiss the Application at this stage.

12Section 45 of the Code provides that the Tribunal may defer an Application in accordance with the Tribunal’s Rules of Procedure. Rule 14.1 enables the Tribunal to defer consideration of an Application, on such terms as it may determine, on its own initiative or at the request of any party. Deferral of an Application ensures that proceedings dealing with the same issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law.

13Some factors that have been identified as relevant in deciding whether to defer consideration of an application before the Tribunal are: the subject matter of the other proceeding, the nature of the other proceeding, the types of remedies available in the other proceeding, and whether it would be fair overall to the parties to defer, having regard to the status of each proceeding and the steps that have been taken to pursue them. See Baghdasserians v. 674469 Ontario, 2008 HRTO 404.

14I agree with the applicant’s arguments on deferral. The issue before the OLRB is whether the alleged conduct of the union is a breach of the LRA, whereas the issue before the Tribunal is whether the alleged conduct of the respondent is a breach of the Code. While there is some factual overlap between the two proceedings, they raise different issues and involve different parties and different potential remedies. Applying the reasoning which the Tribunal has applied in similar circumstances (see: Dixon v. Corporation of the City of Mississauga, 2010 HRTO 1867 , Bettencourt v. Peel District School Board, 2010 HRTO 1644, Shaw v. Faurecia Automotive Seating Canada, 2011 HRTO 20) I conclude that it is not appropriate to defer consideration of the Application in the circumstances.

Union Request to Intervene

15A union almost always has an interest in a human rights application involving a member, and unless there are exceptional circumstances, the Tribunal will grant it intervenor status when requested. The union in this case was the bargaining agent for the applicant and initially grieved her termination. The Application makes allegations about the role the union played in the events that allegedly constitute discrimination. Should the Tribunal find that there was discrimination in this case, the remedy it might order could have an impact on the union’s interests. For these reasons I am satisfied that the Union has an interest in the Application, and the Request to Intervene is granted.

order

16The Request to Defer is denied.

17The union’s Request to Intervene is granted.

18As the parties have indicated a willingness to try to resolve this Application through mediation, the Registrar is requested to schedule a date for mediation with the parties and the union.