Alvaro v. District School Board Ontario North East, 2017 HRTO 1071

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Nerea Alvaro Applicant

-and-

District School Board Ontario North East Respondent

INTERIM DECISION

Adjudicator: Eban Bayefsky Date: August 16, 2017 Citation: 2017 HRTO 1071 Indexed as: Alvaro v. District School Board Ontario North East

WRITTEN SUBMISSIONS

Nerea Alvaro, Applicant Self-represented

District School Board Ontario North East, Respondent Anna Karimian, Counsel

Ontario Secondary School Teachers’ Federation, Intervenor Vaino Poysa, Counsel

1The applicant filed Applications alleging discrimination with respect to employment on the basis of race, place of origin, ethnic origin and reprisal, contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (“Code”). By Interim Decisions dated May 22, 2015 and July 22, 2016 (2015 HRTO 668 and 2016 HRTO 970), the Tribunal deferred the Applications pending the conclusion of grievance arbitrations. The applicant sought to re-activate these Applications, and by Interim Decisions dated February 14 and March 9, 2017, the Tribunal denied the applicant’s requests.

2The applicant has renewed her request to re-activate the Applications on the basis that her union, the Ontario Secondary School Teachers’ Federation (the “Union”), has now withdrawn the relevant grievances. The applicant has also asked that the two Applications be consolidated and that the Union be added as a respondent to the proceedings.

3This Interim Decision addresses the applicant’s requests, as well as the request of the respondent, District School Board Ontario North East (the “Board”), that the Tribunal dismiss the Applications on the basis that another proceeding has appropriately dealt with the substance of the Applications.

decision

(i) Request to re-activate and Request to dismiss

4On June 6, 2017, the Union advised the Board that it would “not be proceeding” with the relevant grievances and that this was on a “without prejudice and without precedent basis.”

5The Board responded the same day that it had not consented to the withdrawal, and that “should the Union persist in the withdrawal, it shall be treated by the Board as unilateral, with prejudice and giving rise to a res judicata or issue estoppel.”

6On June 19, 2017, the Union responded that it was “entitled to withdraw these grievances without prejudice to Ms. Alvaro’s rights to pursue or initiate any complaint against the Board in any other forum….”

7The Board submits that the substance of the two Applications has been appropriately dealt with in the grievances, and is barred by virtue of section 45.1 of the Code, which states as follows:

The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.

8Even if the filing of the grievances could be considered a “proceeding” for the purposes of section 45.1, and even if the Board did not consent to the withdrawal of the grievances and considered the withdrawal to be on a “with prejudice” basis, given that the grievances did not proceed to a hearing and/or determination on the merits, I do not find that the substance of the current Applications was appropriately dealt with. The Board’s request to have the Applications dismissed is denied.

9As the grievances have now been withdrawn, the applicant’s request to re-activate her Applications is granted.

(ii) Request to consolidate

10Pursuant to Rule 1.7(d) of the Tribunal’s Rules of Procedure, the Tribunal may, to provide for the fair, just and expeditious resolution of a matter, consolidate or hear Applications together. Neither the Board nor the Union objected to the applicant’s request to consolidate the two Applications.

11Given the similarities between the two matters, I find that the Applications should be consolidated and heard together.

(iii) Request to add a respondent

12The applicant requested that the Union be added as a respondent to these proceedings on the following grounds (as stated in her materials):

(a) conflict of interest with arbitrator (b) concerning behaviour of the Union and Board (c) conflict of interest with arbitrator and collective agreement (d) memorandum of settlement

13The Board agreed that the Union should be added as a party since “the Applicant’s complaints against the Board were raised by the Union’s insistence on the application of the parties’ collective agreement.”

14The Union objected to the applicant’s request on the basis that none of the concerns raised by the applicant disclose a violation of the Code.

15When determining a request to add a respondent, the Tribunal considers the following three questions:

1. Are there allegations made that could support a finding that the proposed respondent violated the Code?
2. If the proposed respondent is an individual and an organization is also named, is there a compelling reason to include him or her as a respondent?
3. Would it be fair, in all the circumstances, to add the proposed respondent?

See Smyth v. Toronto Police Services, 2009 HRTO 1513.

16The application of the first stage involves considering whether there are allegations made in the Application that could lead to a finding that the proposed respondent violated the Code. The second stage does not apply in this case as the Union is not an individual or personal respondent. At the third stage, the Tribunal may consider a variety of factors, including the effects on the hearing process of adding the proposed respondent, the reasons the proposed respondent was not named in the Application or Response, and any prejudice to the other parties.

17I agree with the Union’s position. While the applicant raised concerns about potential conflicts of interest and the Union’s handling of her grievances, she only alluded to the possibility of discriminatory conduct on the part of the Union without particulars or a reasonable basis upon which the Union might be found to be in breach of her rights under the Code. In any event, the applicant’s allegations against the Union essentially concern its signing a Memorandum of Settlement with the Board on March 19, 2012, well beyond the one-year time limit for filing an Application under the Code.

18The applicant’s request to add the Union as a respondent is denied.

ORDER

19The Board’s request to have the Applications dismissed is denied.

20The Applications are re-activated.

21The Applications are consolidated.

22The applicant’s request to add the Union as a respondent in the Applications is denied.

NEXT STEPS

23The respondent School Board has yet to file a Response to the Application. The respondent must do so no later than 35 days from the date of this Interim Decision. The applicant must provide a Reply, if any, no later than 21 days after the Response is sent to her.

I am not seized of this matter.