HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Roberta Mazzariol
Applicant
-and-
London District Catholic School Board
Respondent
-and-
Ontario English Catholic Teachers Association
Intervenor
INTERIM DECISION
Adjudicator: Bruce Best
Indexed as: Mazzariol v. London Catholic District School Board
WRITTEN SUBMISSIONS
Roberta Mazzariol, Applicant
Ron Franklin, Counsel
London Catholic District School Board, Respondent
John-Paul Alexandrowicz, Counsel
Ontario English Catholic Teachers Association, Intervenor
Jerry Raso, Counsel
Introduction
1The applicant is a teacher with the respondent school board (“the school board”), and was represented by the intervenor union (“the union”). Two grievances were filed in June 2014. These grievances were referred to arbitration, and were scheduled for hearing dates in 2015, where the parties engaged in settlement discussions, but were unable to resolve the issues. Further dates have been scheduled, and though some were cancelled, the arbitration is currently scheduled to proceed on November 4 and November 6, 2016.
2The applicant filed this Application with the Tribunal on March 29, 2016. The Application was deferred on consent pending the resolution of the grievances.
3On July 26, 2016, the applicant requested that the Tribunal reactivate the Application (the “Request”). She indicates that she had asked her union to withdraw the grievances as she now wishes to instead pursue the issues at the Tribunal. She claims that the union agreed to withdraw the grievances provided she agreed to release them from any claims for so doing. She refused to sign the release. The applicant further indicated in the Request that though the grievances had not been formally withdrawn, she understood that the union had nonetheless cancelled the scheduled arbitration dates, and adjourned the grievances sine die.
4The school board opposes the reactivation of the Application. It claims that the scheduled hearing dates have not been cancelled, and that as it stands the arbitration is proceeding in November 2016. It further takes the position that the Request is an abuse of process, and that the applicant is bringing the Request in an attempt to “forum shop” and to avoid having to comply with pre-hearing disclosure ordered prior to the 2015 mediation dates; London District Catholic School Board v Ontario English Catholic Teachers Association, 2015 CanLII 32365 (ON LA) (the “disclosure order”).
5The applicant claims that she was unaware until seeing the school board’s response that the hearing dates had not in fact been cancelled. The applicant further notes that the documents ordered in the grievance arbitration proceedings are essentially the same as she would be required to disclose under Rule 16.1 of the Tribunal’s Rules of Procedure, so the claim that the Request is simply an attempt to avoid production is without merit, as she will be required to produce the documents regardless of which forum ultimately addresses the issues.
6The union filed brief submissions. It indicated that it had narrowed the scope of the release it wanted the applicant to give in order for the grievances to be withdrawn, but that she still refused to sign the amended release.
Decision
7As noted in Melville v. Toronto (City), 2012 HRTO 22 (“Melville”) at para 8, an individual working under a collective agreement who alleges that her Code rights have been violated has a choice; she can pursue a grievance where she will have the benefit of representation by the union and the enforcement of the rights afforded by the collective agreement, or she can decide to forgo those benefits and pursue an application at the Tribunal where, as noted in Nash v. Ottawa-Carleton District School Board, 2012 HRTO 2299, at para 22, she will have the advantage of greater control over how the matter proceeds. She cannot, however, pursue both at the same time.
8The purpose of s.45 of the Code is to avoid proceedings dealing with the same issues from running concurrently,