Human Rights Tribunal of Ontario
B E T W E E N:
Tian Butcher Applicant
-and-
Trillium Lakelands District School Board and Elementary Teachers Federation of Ontario Respondents
DECISION
Adjudicator: Mark Hart Date: December 1, 2016 Citation: 2016 HRTO 1545 Indexed as: Butcher v. Trillium Lakelands District School Board
APPEARANCES
Tian Butcher, Applicant Hugh Scher, Counsel
Trillium Lakelands District School Board, Respondent Carolyn Kay, Counsel
Elementary Teachers Federation of Ontario, Respondent Christine Davies, Counsel
1This is an Application dated May 23, 2014 and completed June 20, 2014 alleging discrimination with respect to employment and membership in a vocational association because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).
2In brief, the applicant alleges that her employer, the respondent Trillium Lakelands District School Board (the “Board”), failed to appropriately accommodate her following injuries sustained in a motor vehicle accident and discriminated against her because of disability when the Board terminated her employment in January 2015. She also alleges that her union, the Elementary Teachers Federation of Ontario (“ETFO”), discriminated against her because of disability in relation to the handling and ultimate withdrawal of certain grievances filed on her behalf.
3This matter was referred to an in-person preliminary hearing to hear oral submissions from the parties as to whether the Application should be dismissed as an abuse of process and/or as having no reasonable prospect of success, largely as a result of the settlement of a civil claim brought by the applicant against her long-term disability (“LTD”) benefits provider and the position taken by the applicant in that litigation.
4The hearing in this matter was originally scheduled to proceed on December 15, 2015, but needed to be adjourned due to the involvement of applicant counsel in a motor vehicle accident. The hearing was re-scheduled and proceeded before me on May 13, 2016, at which time I heard oral submissions from all parties. I also have considered all of the material filed with the Tribunal for the purpose of the preliminary hearing.
5In the intervening period, the applicant filed a Request for Order dated March 7, 2016 seeking to amend her Application, primarily to allege a violation of the Code in relation to the termination of her employment which had occurred after the original Application had been filed and also to clarify the original allegations against both respondents. I note that the applicant was self-represented at the time the original Application was filed. The Board does not object to the requested amendments as they relate to events that post-date the original Application, but opposes the amendments relating to events that had already occurred at the time the original Application was filed. ETFO opposes the requested amendments in their entirety. For the purpose of this Decision, I will consider the allegations against both respondents as set out in the amendments requested by the applicant. Given the ultimate disposition of this matter, it is not necessary for me to rule on the issue of whether to grant the amendments.
Background
6The applicant commenced employment with the Board in September 2009 as a teacher at the Oakwood Learning Centre (“OLC”). The OLC is an education program operated by the Board for high risk students with emotional, behavioural, mental health and other developmental issues who reside at the Hawk Residential Care and Treatment Homes (“Hawk Homes”). At the OLC, the students take part in a full-day alternative education program with a classroom teacher and agency support staff. At all material times, the applicant was a member of ETFO.
7There appears to be no issue that in her first year teaching at the OLC, the applicant performed well.
8On September 10, 2010, near the start of the following academic year, the applicant was involved in a motor vehicle accident which exacerbated an existing traumatic brain injury she had sustained as a teenager. The applicant was off work on medical leave from the time of the accident until the fall of 2012, when she first attempted to return to work.
9In June 2012, the applicant provided the Board with certain medical documentation supporting her return to work as of September 2012 with identified accommodations. A return to work meeting was held on August 22, 2012. At this meeting, the Board discussed the applicant returning to a half-time position at an elementary school working in the library, which appeared to meet the applicant’s accommodation needs. This proposed position