Human Rights Tribunal of Ontario
B E T W E E N:
Diane Gan Applicant
-and-
District School Board of Niagara Respondent
INTERIM DECISION
Adjudicator: Mary Truemner Date: October 9, 2015 Citation: 2015 HRTO 1351 Indexed as: Gan v. District School Board of Niagara
WRITTEN SUBMISSIONS
Diane Gan, Applicant ) Self-represented
District School Board of Niagara, ) John-Paul Alezandrowicz, Counsel Respondent )
1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). This Interim Decision deals with the issue of whether the Application should be re-activated, having been deferred in an Interim Decision issued June 2, 2014, pending the completion of a related grievance proceeding. (See 2014 HRTO 783).
2On September 4, 2015, the applicant requested to re-activate the Application, indicating that the grievance proceeding was complete.
3The respondent filed a Response to the applicant’s Request to reactivate, indicating that the grievance proceeding had indeed completed on August 20, 2015 when the applicant’s union agreed with the respondent that the grievance should be concluded, and cancelled the hearing date.
4The respondent opposes the Request to reactivate the Application, and argues that it should instead be dismissed under section 45.1of the Code on the grounds that the substance of the Application was appropriately dealt with in the grievance proceeding.
5The applicant filed a Reply to the respondent’s Response to the Request to reactivate, and her documents imply that she believes her union was unfair to her. The applicant should note that her union is not a respondent in this matter.
6As well, the Tribunal does not have the general power to deal with allegations of unfairness, alleged violations of the collective agreement, violations of the duty of fair representation under the Labour Relations Act, 1995, S.O. 1995, c. 1, Sched. A or whether the employer or union acted improperly. It can only deal with alleged discrimination or harassment on the grounds set out in the Code.
7In the context of applications against unions, the Tribunal has held that the mere failure to file or pursue a grievance is not a violation of the Code. Rather, an applicant must prove, on a balance of probabilities, that a prohibited ground was a factor in the union’s action or non-action: see, for example, Traversy v. Mississauga Professional Firefighers’ Association, 2009 HRTO 996, at paras. 32-33; Arias v. Centre for Spanish Speaking Peoples, 2009 HRTO 1025, at paras. [16-17](https://www.canlii.org/en/on/onhrt/doc/2