Mekhail v. Dufferin Peel Catholic District School Board, 2017 HRTO 1098

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Adel Mekhail Applicant

-and-

Dufferin Peel Catholic District School Board Respondent

INTERIM DECISION

Adjudicator: Brian Cook Date: August 23, 2017 Citation: 2017 HRTO 1098 Indexed as: Mekhail v. Dufferin Peel Catholic District School Board

APPEARANCES

Adel Mekhail, Applicant Self-represented

Dufferin Peel Catholic District School Board, Respondent Dianne Jozefacki, Counsel

CUPE Local 1483, Intervenor Paul O’Ryan, Counsel

1This Application alleges discrimination and harassment in employment contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (“the Code”).

2The Application was scheduled for a preliminary hearing which was held by telephone conference call on July 24, 2017. The preliminary hearing dealt with the following issues:

1. Is the union entitled to be an intervenor in the Application?
2. Should the Application be dismissed in whole or in part as having no reasonable prospect of success?
3. Should the Application be dismissed in whole or in part because a grievance proceeding has appropriately dealt with the substance of the Application?
4. Should the applicant be permitted to amend the Application to include allegations about prior events?

THE UNION’S REQUEST TO INTERVENE

3The applicant is a member of the union and a copy of the Application was sent to the union in accordance with the Tribunal’s usual approach when an applicant is a member of union. The union filed a Request to Intervene which was granted by the Tribunal. After that, the applicant said that he objects to the union being an intervenor.

4At the hearing, he explained that he objects because he feels that the union did not adequately pursue his rights under the Code in the past.

5This is not a reason to deny the union status as an intervenor. The Tribunal typically allows a union to be an intervenor when a member of the union files an Application that relates to the workplace. The union’s status as an intervenor is confirmed. The extent of the union’s involvement will be determined at such time as the matter proceeds to a hearing.

BACKGROUND

6The applicant is employed as a school custodian by the respondent School Board. He self-identifies as an Arab male and a Coptic Orthodox Christian.

7In the Application, he checked the boxes of Gender Identity and Gender Expression as among the claimed grounds of alleged discrimination. These grounds do not apply to the applicant. However, it is clear that he does allege differential treatment because he is a male.

8Starting in approximately June 2015, he had conflict with a female co-worker. The applicant was employed as the Head Custodian and the co-worker was a custodian. He complained of the conflict to his manager and supervisor. He alleges that the way the conflict was managed was discriminatory based on his creed and race and because he is a male.

9In February and March 2016, there were issues relating to an inspection of the school by the applicant’s supervisor. From March to May 2016 there were disputes about work scheduling. In April 2016, the applicant requested the Coptic Orthodox Good Friday day as paid leave. The applicant alleges that he was required to take this day as a vacation day.

10In assessing whether an Application should be dismissed as having no reasonable prospect of success, unless there is clear evidence to the contrary, the Tribunal will generally assume, for the purpose of the assessment, that the applicant’s allegations about what happened are true.

Allegations related to conflict with a co-worker

11The applicant alleges that he was held to a different standard than the female co-worker because he is male and because of discrimination because of creed and race.

12I find that a determination of whether there is no reasonable prospect that the applicant could successfully prove this allegation requires evidence to determine what happened and whether it was discriminatory. This aspect of the Application is not dismissed at this time.

Allegations about work scheduling in March to May 2016

13I find that a determination of whether there is no reasonable prospect that the applicant could successfully prove his allegations that work scheduling in the period from March to May 2016 cannot be made at this time. There are differences between the parties about what actually occurred with respect to scheduling in this period and evidence is required to determine what happened and whether there was any infringement of the applicant’s rights under the Code. This aspect of the Application is not dismissed at this time.

Religious Day

14In 2016, the Coptic Orthodox Good Friday was on April 29. There is no dispute that the applicant asked for this day as a paid leave. The applicant alleges that he had to use a vacation day. The respondent says that he did not have to use a vacation day and was instead granted a personal day.

15The Respondent’s policy on use of “Emergency Leaves”, provides that employees are entitled to up to one day of paid leave for “Religious Holy Days”. The respondent submits that this policy was applied to the applicant's request in regard to April 29, 2016.

16The applicant had already booked off vacation for the period April 25 to May 13, 2016, so the Good Friday occurred in this vacation period. The applicant is convinced that a vacation day was used for the Good Friday day. The respondent is convinced that a vacation day was not used and that instead an “Emergency Leave” day was applied.

17I am satisfied that even if the applicant is right about this issue and that a vacation day was applied and not an Emergency Leave day, there is no reasonable prospect that the applicant could prove that this happened for discriminatory reasons, as opposed to confusion or problems calculating vacation leave entitlement.

18The allegations relating to April 29, 2016 are dismissed as having no reasonable prospect of success.

School Inspections in February and March 2016

19The applicant filed a grievance on March 21, 2016. The grievance filed by the union claimed that the inspections and the subsequent report were unjust and were a “direct reprisal because of his stance against injustice.” The grievance requested that the employer “refrain from engaging in these unprofessional [behaviours] as it violates the Human Rights codes of Canada.”

20The grievance was disposed of at a Step 2 Grievance Meeting on May 4, 2016. It resulted in changes to supervisory inspections procedures.

21Section 45.1 of the Code reads as follows:

45.1 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.

22The central purpose of section 45.1 is to prevent the re-litigation or argument of matters that have already been dealt with in another proceeding. When an allegation of a violation of a person’s rights has been raised in a union grievance that has been resolved, the person cannot then raise the same issue at this Tribunal.

[23] In a union grievance proceeding under a collective agreement where human rights issues have been raised, an arbitrator appointed under a collective agreement has the same jurisdiction to interpret and apply the Code as does this tribunal. In this case, the applicant makes the same allegations that he made in the grievance proceeding. While I appreciate that the applicant may not have liked the result, this does not mean that he can reargue the same thing again at this Tribunal.

24I conclude that the allegations related to supervisory inspections in February and March 2016 must be dismissed under section 45.1 of the Code.

REQUEST TO AMEND THE APPLICATION

25The Application was filed on May 9, 2016. On July 21, 2016, the applicant filed a request to amend the Application to include allegations relating to his employment in the period from December 2014 to March 2015.

26In March 2015, the applicant transferred to a new school so the requested amendments relate to his employment at a different school than the allegations in the original Application.

27They also are allegations that relate to events that occurred more than one year before the Application was filed. Section 34 of the Code provides:

34. (1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series.

(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

28I find that the allegations that the applicant wishes to add to the Application pre-date the events giving rise to the allegations set out in the Application. The earlier allegations are separate from the allegations in the Application and the events from December 2014 to March 2015 occurred more than one-year before the Application was filed which was on May 8, 2016. I therefore conclude that the applicant is not permitted to amend the Application to include allegations about events in the period from December 2014 to March 2015.

DECISION

29The Application is dismissed in part.

30The allegations about conflict with a co-worker and about work scheduling in the period from March to May 2016 are not dismissed at this time.

31The allegation about April 29, 2016 is dismissed as having no reasonable prospect of success.

32The allegations about school inspections in February and March 2016 were also made as part of a grievance proceeding. Those allegations have been appropriately dealt with under the grievance proceeding and those allegations are dismissed under section 45.1 of the Code.

33The applicant’s request to amend the Application to include events in the period from December 2014 to March 2015 is denied.