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: Alison Renton
Indexed as: Gan v. District School Board of Niagara
WRITTEN SUBMISSIONS
Diane Gan, Applicant
Self-represented
District School Board of Niagara, Respondent
Jeffrey Patterson, Counsel
1This Application was filed under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (“the Code”) and alleges discrimination with respect to employment because of race, colour, ancestry, place of origin, ethnic origin and age.
2In a Case Assessment Direction dated March 9, 2016 (“the March CAD”), the Tribunal indicated that upon review of the file, it had decided to hold a preliminary hearing to determine whether the Application should be dismissed, in whole or in part, on the basis that:
a. it appears that some or all of the allegations may be untimely;
b. another proceeding has appropriately dealt with the substance of the Application; and/or
c. there is no reasonable prospect that the Application or part of the Application will succeed.
3In a Case Assessment Direction dated May 3, 2016 (“the May CAD”), the Tribunal deferred the Application, on consent of the parties, pending conclusion of a reconsideration request that the applicant filed of an Ontario Labour Relations Board (“OLRB”) decision.
4The applicant filed a Request for an Order During Proceedings (“RFOP”) dated June 20, 2016 to which she attached 11 pages of submissions as well as a copy of the OLRB’s reconsideration decision. In her RFOP she requests that the Tribunal:
Re-activate her Application;
Order the respondent and her union, OSSTF, to produce various documentation;
Permit the Niagara Occasional Teachers’ President, Mark Carter, to attend all her hearings and arbitrations; and,
Open and re-open all secondary and elementary incidents “and other issues”.
5The respondent filed a Response to the RFOP. It does not oppose the applicant’s re-activation request, but continues to oppose the applicant’s request to change the preliminary and summary hearings from conference call to in-person. Further, it continues to oppose the applicant’s production of documents request, submitting that the request is pre-mature.
6The applicant filed submissions after the respondent’s Response to the RFOP in which she repeated some of the submissions she made in her RFOP.
re-activating the application
7The applicant’s request to re-activate her Application was filed in a timely manner and is not opposed by the respondent.
8Accordingly, the Application is re-activated. Further to the March CAD, the Tribunal will schedule a preliminary/summary hearing to address the issues identified in that CAD, as set out above.
9The time frames and disclosure obligations set out in the March CAD will apply, using the date of this Interim Decision as the starting date. For example, in para. 8 of the March CAD, the parties were directed to “… deliver any additional documents, witness lists, or case law they wish the Tribunal to consider to each other and file them with the Tribunal no later than 35 days after the date of this Case Assessment Direction”. The date of this Interim Decision will trigger the beginning of the 35 day period. This would also apply to paras. 21 and 23.
how the preliminary hearing/summary hearing will proceed
10The applicant submits that she believes “…Face-to-Face and Back-and-Forth conversations are needed to help resolve the misunderstandings/issues or to achieve effective solutions”.
11The applicant’s request to conduct the preliminary hearing/summary hearing in-person is denied at this time. The reasons that she has provided are not sufficient to convert the preliminary/summary hearing from a telephone conference call to an in-person hearing, as the Tribunal typically conducts summary hearings and preliminary hearings by telephone conference call. Both parties will be given the opportunity make submissions and respond to each other’s submissions during the telephone conference call.
production of documents
12The Tribunal has held that requests for production of documents are, generally, premature if they are filed before a Notice of Hearing on the merits has been issued. See, for example, Barksey v. Laurentian University, 2014 HRTO 1421 at para. 3.
13The applicant’s request for the union, OSSTF, to produce documentation is denied. The OSSTF is not a respondent to this Application and has not sought intervenor status. In fact, OSSTF has written to the Tribunal and advised that it will not be seeking intervenor status.
14The applicant’s request for the respondent to produce documentation is denied. As noted above, the March CAD set out disclosure obligations to the parties to file any documentation upon which they intend to rely for the preliminary/summary hearing. Her request for documentation is otherwise premature.
Niagara occasional teachers’ president, mark carter, to attend hearings and arbitrations
15The Tribunal’s hearings, including those held by telephone conference call, are open to the public. The applicant can advise Mr. Carter of the telephone call-in instructions when she receives the date and call-in instructions in the Notice of Preliminary/Summary Hearing that the Tribunal issues to the parties.
16It is beyond the Tribunal’s jurisdiction to rule on whether or not Mr. Carter can attend the applicant’s arbitrations.
Open and re-open all secondary and elementary incidents “and other issues”
17The applicant sets out a number of concerns she has with the OLRB’s decisions under this heading in the submissions she attached to her RFOP.
18As set out in the March CAD, one of the issues before the Tribunal is whether the substance of the Application has been considered and appropriately dealt with in another legal proceeding, specifically the grievance process and/or the proceeding before the OLRB. See paras. 6 to 8 and paras. 22 to 23 of the March CAD.
19Accordingly, during the preliminary/summary hearing, the Tribunal will hear the parties’ submissions about the grievance process and the OLRB decisions.
order
20The Tribunal orders as follows:
a. The applicant’s request to re-activate her Application is granted;
b. The applicant’s request that the preliminary/summary hearing be conducted in-person is denied. The preliminary/summary hearing will be conducted by telephone conference call;
c. The applicant’s request for production of documents from OSSTF and the respondent is denied;
d. The Tribunal’s preliminary/summary hearings are open to the public; and
e. The parties will have the opportunity to make submissions about the grievance process and the OLRB decisions.
next steps
21The Tribunal will issue a Notice of preliminary/summary hearing by telephone conference call to the parties, setting out the date, time and call-in instructions for the telephone conference call. The directions and timeframes set out in the March CAD apply, using the date of this Interim Decision as the date upon which the obligations start to run.
22I am not seized with this matter.
Dated at Toronto, this 9th day of August, 2016.
“Signed By”
Alison Renton
Vice-chair