HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Lisa Desantis
Applicant
-and-
Toronto Catholic District School Board
Respondent
-and-
Toronto Occasional Teacher’s Local - Ontario English Catholic Teachers
Intervenor
INTERIM DECISION
Adjudicator: Geneviève Debané
Indexed as: Desantis v. Toronto Catholic District School Board
APPEARANCES
Lisa Desantis, Applicant Self-represented
Toronto Catholic District School Board, Respondent Melissa L. Arruda, Counsel
Toronto Occasional Teacher’s Local-Ontario English Catholic Teachers, Intervenor Christopher Perri, Counsel
Introduction
1The applicant filed an Application on October 4, 2014 alleging discrimination with respect to employment because of disability. The applicant is an Occasional Teacher with the respondent and is represented by the intervenor who is the bargaining agent for the occasional teachers of the respondent.
2In the Application the applicant makes two allegations of discrimination. The first incident is with respect to an interaction that occurred at a School in March 2012, in which she alleges that the principal made an inappropriate reference about her eyes. The intervenor filed a grievance on her behalf with respect to this incident.
3The second allegation relates to events at a different school in which she alleges that a student started calling her “Bubbles” at some time in 2011. The applicant believes that this comment is harassing because it refers to the fact that she wears prescription glasses. She said that at first she tried to address this issue with the student but that other students started calling her that name. Eventually, she believes that through social media this name spread to other schools. In January 2014, the applicant states that she complained but that she has received no support from the respondent and that it has failed in its obligation to provide her with a workplace free from harassment and discrimination. In the Application she indicates that the last incident of alleged discrimination with respect to this incident occurred in April 2014.
4The Tribunal directed that a preliminary hearing be held to address two issues, whether the Application should be dismissed pursuant to section 45.1 of the Code and/or for delay.
5On October 25, 2015, the applicant filed a Request to amend the Application to include an allegation that the respondent terminated her employment on September 30, 2015, contrary to the Code. The Registrar advised the parties that the applicant’s request to amend the Application would be dealt with at the preliminary hearing scheduled on November 10, 2015.
S. 45.1 of the Code
6Section 45.1 of the Code provides as follows:
The Tribunal may dismiss an application, in whole or in part, in accordance with the rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.
7The parties agree that a number of the applicant’s grievances were referred to arbitration. On September 18, 2014, all of the parties attended a mediation session before the arbitrator which resulted in Minutes of Settlement. Though the intervenor and the respondent signed the Minutes of Settlement the applicant did not. Being dissatisfied with the Minutes of Settlement, the applicant filed this Application a few weeks later.
8The respondent and the intervenor take the position that the Tribunal should exercise its discretion pursuant to s. 45.1 of the Code to dismiss the Application because the entire subject-matter of the Application has been appropriately dealt with in the arbitration proceeding which resulted in the execution of the Minutes of Settlement between them. The applicant takes the position that she should not be bound by the Minutes of Settlement because she never agreed to its terms.
9After hearing the parties submissions I denied the Request to dismiss the Application pursuant to s. 45.1 of the Code. My reasons for doing so follow.
10Section 45.1 of the Code is a discretionary section which permits the Tribunal to dismiss an application if it is satisfied that another proceeding has appropriately dealt with the subject-matter of the Application.
11The intervenor relied in the Tribunal’s decision in Dunn v. Sault Ste. Marie (City), 2008 HRTO 149 (“Dunn”). At para. 38 of Dunn the Tribunal discussed the voluntary nature of settlements. In this case, the applicant has not signed the Minutes of Settlement and therefore the reasoning in Dunn does not apply. The Tribunal has refused to dismiss applications in circumstances in which an applicant has not agreed to the terms of settlements entered into by a union without the consent of the grievor. Though a bargaining agent may have the right to enter into Minutes of Settlement that finally resolve a grievor’s right’s under a collective agreement it cannot unilaterally resolve an applicant’s right to file an Application pursuant to the Code without consent. See for example: Linder v. Lambton Kent District School Board, 2015 HRTO 658 and, Jean v. Residence St. Louis, 2011 HRTO 1800.
12In my view the fact that an applicant does not execute the Minutes of Settlement is not necessarily finally determinative of the issue. The Tribunal should consider whether an applicant consented to the settlement through her union and whether the applicant through her conducted accepted the benefits of the settlement. In Calvo v. Toronto Public Library Board (“Calvo”), 2014 HRTO 955, the Tribunal states at para. 25 and 26:
The respondent also relies on Bhandari as an example of a case where, even though the applicant’s union signed the Minutes of Settlement and he did not, the Tribunal found that it would be an abuse of process to proceed with the Application. The Tribunal noted that each case must be decided on its particular facts, and noted in particular that the applicant derived “significant financial benefit” from the settlement, as his bargaining agent the union was entitled to act and resolve grievances on his behalf, and he had already attempted to challenge the union’s actions at the Ontario Labour Relations Board, where it was ruled that the union’s actions were “thorough and fair”. In accepting the significant financial benefit in that case, the applicant could be presumed to have accepted the terms of the settlement, even though his signature did not appear on the Minutes of Settlement.
Here, the applicant has not signed the Minutes of Settlement, nor has she by her actions indicated that she has implicitly accepted its terms. Any benefit conferred on the applicant by the Minutes of Settlement in this matter were all benefits which were within the sole control of the respondent: it communicated with the other employees regarding the reasons for her transfer; it assigned her duties to perform; it scheduled her hours and her days off. I also note that the settlement provisions relating to scheduling and to the assignment of particular duties do not appear to bear a direct relationship with either the grievance or the Application. Finally, the preservation of the applicant’s right to post into another position under the terms of the collective agreement can hardly be understood as a benefit which accrued to her due to the Minutes of Settlement. That was a benefit secured for her by her union in collective bargaining.
13In the case before me there is no dispute that the applicant objected to the Minutes of Settlement and refused to sign the document. Further, the benefit under the settlement was that certain documents in her employment file would be sealed for a certain period of time and if there were no further similar incidents then these documents would be shredded. I agree with the reasoning in Calvo and that the benefit provided under the Minutes of Settlement is exclusively within control of the respondent. As such, I am satisfied that it is not appropriate to dismiss the Application, in whole or in part, pursuant to s. 45. 1 of the Code.
Request to Amend
14The applicant sought to amend her Application to include allegations related to the termination of her employment on September 30, 2015. At the hearing the respondent took the position that it opposed the amendment because it does not make out a prima facie case and that it has no reasonable prospect of success. The intervenor did not oppose the applicant’s Request to amend. At the hearing I granted the applicant’s Request to amend. What follows are my reasons.
15Rule 1.7 of the Tribunal’s Rules of Procedure states:
In order to provide for a fair, just and expedition resolution of any matter before it the Tribunal may:
c) allow any filing to be amended.
16In granting amendments the Tribunal usually considers the stage at which the request to amend is made, the nature of the amendment and the absence of any apparent prejudice. In this case I am satisfied that the Request to amend is timely. It is clear that the Request to amend is made within the timelines provided by the Code, and it is still early in the proceeding since this matter has not yet proceeded to Mediation. Secondly, the events described in the Request to amend relate to the Application and involve the same parties. I note that if I were to deny the amendment the applicant could simply file a new Application making the same allegations. It would not be efficient for the Tribunal to have two separate applications involving the same parties and related issues. For all of these reasons, it is appropriate to grant the applicant’s Request to amend. If the respondent is of the view that the Application as amended has no reasonable prospect of success then it may make a Request for summary hearing at the appropriate time.
Deferral
17At the hearing the parties advised that the intevenor had filed a grievance with respect to the applicant’s termination from employment which is being heard on an expedited basis on December 11, 2015. At the preliminary hearing I asked that the parties consider whether it is appropriate for the Tribunal to defer the Application pending the conclusion of the arbitration proceeding. After consideration, the parties consented to the deferral of the Application.
18At the hearing I found that the Application should be deferred. What follows are my reasons.
19In Baghdasserians v. 674469 Ontario, 2008 HRTO 404, the Tribunal made the following comments about deferral at paras. 18-19:
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. However, deferral is not automatically invoked simply because the parties are involved in other legal proceedings.
Some of the factors that may be 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 type 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.
20The Tribunal has generally deferred applications where there is an ongoing grievance under a collective agreement based on the same facts and human rights issues. In explaining this approach, the Tribunal has referred to the fact that the Supreme Court of Canada has affirmed that grievance arbitrators have not only the power but also the responsibility to implement and enforce the substantive rights and obligations of human rights and other employment-related statutes as if they were part of the collective agreement [Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42].
21In this case the arbitrator will be addressing the reasons for the applicant’s termination from employment. This issue now forms part of the Application in light of the amendment that I have granted. It would not be an efficient use of the Tribunal’s resources to have two proceedings consider concurrently the same facts as this may lead to contrary findings and decisions. Therefore, I find it is most fair, just and expeditious to defer this Application.
Other Matters
22At the preliminary hearing the parties agreed that in light of the deferral of the Application that the Tribunal would not address the issue of delay at this stage. The respondent requested that I order the applicant to provide particulars of certain allegations. I declined to do so since the Application has been deferred in accordance with the Tribunal’s usual practice. The respondent may renew its request for particulars if the Application is reactivated.
ORDER
23The Tribunal orders:
a. The respondent and intervenor’s Request to dismiss pursuant to section 45. 1 of the Code on the basis that the Minutes of Settlement dated September 18, 2014 appropriately dealt with the substance of the Application is denied;
b. The applicant’s October 25, 2015 Request to amend the Application is allowed;
c. The Application is deferred pending the conclusion of the arbitration proceeding; and
d. On the consent of the parties the Tribunal will not address the issue of delay at this time.
24The Tribunal directs the parties’ attention to Rule 14 of the Tribunal’s Rules of Procedure which sets out the procedure if a party wishes to proceed with an application that has been deferred pending the conclusion of another proceeding.
25I am not seized.
Dated at Toronto, this 13th day of November, 2015.
“Signed by”
Geneviève Debané Vice-chair