3908-99-U David B. Grainger, Applicant v. Windsor-Essex Catholic District School Board, John Macri, Gerald Bondy, Joan Courtney, Kay Dame, Jo-Anne Gignac, Patrick Keane, Richard Kniaziew, Edwin Kornacki, Donald Petrozzi, Janet Ouellette, Kathy Gloster, Theresa Barichello and Paul L. Mullins, Responding Parties v. Greater Essex County District School Board, Intervenor
BEFORE: Anthony Brown, Vice-Chair.
DECISION OF THE BOARD; September 7, 2000
1This is an application pursuant to section 96 of the Labour Relations Act, 1995 (the "Act") alleging violation of subsection 87(1).
2In a letter to the Board dated July 27, 2000, the responding party asserts, inter alia, that the individuals who have been named personally as responding parties are not properly so named.
3In essence, the applicant’s complaint is that the responding party refuses to permit him to use its facilities to teach skipping classes. On February 1, 1999, Paul Mullins wrote to the applicant’s then solicitor on behalf of the school board in his capacity as the school board’s lawyer, and explained that the school board had decided to exclude the applicant from its schools for safety reasons pending completion of legal proceedings between the applicant and his former employer.
4Mr. Mullin’s letter makes it clear that the exclusion decision was made by the board in its corporate capacity. It is not a decision of an administrator or individual trustee. It is well established in law that school trustees only have the power to act as a body and the circumstances in which they may attract personal liability are very limited both in statutory and common law.
5The applicant has also personally named as responding parties the school board’s legal counsel (Mr. Mullins) and certain school board employees. However, there are no facts asserted by the applicant that show that the exclusion decision was made by any person other than the school board itself.
6Therefore, the Board has decided that the personally named individuals should be deleted as responding parties and the style of cause will be amended accordingly.
7In its letter to the Board dated July 27, 2000, the responding party also asserts that the Board not have the jurisdiction to hear the application. It seeks to have its preliminary objection dealt with prior to the scheduling of a full hearing.
8An additional preliminary issue is whether or not the Board should exercise its discretion not to hear this application on the basis that the applicant has another forum open to him to have the matter resolved. The applicant’s real complaint is about a decision made by the school board in the purported exercise of its authority under the Education Act. He asks the Board to order the responding party to permit him back onto its property. Even assuming that the Board has the jurisdiction to hear this application or make such an order, the Board has the discretion not to hear the matter if it can be more appropriately dealt with in another forum.
9The parties have until September 15, 2000 to file written submissions on the issue identified in paragraph 8 above and shall provide copies of their submissions to the other parties by the same date. Any reply to a party’s submissions is to be filed by September 22, 2000. The Board will then consider the matter further. The issue may be decided solely on the basis of written submissions and the parties should therefore be aware that the application could be dismissed without an oral hearing.
10This application was originally scheduled to be heard with the applications in Board Files 3628-99-U, 0708-99-U and 4112-99-U. The responding party is not available for the first two scheduled days. The applicant has consented to have the instant matter adjourned. Accordingly, the matter is severed from the hearing of the three applications in the Board files mentioned above, and will be adjourned to a date to be fixed by the Registrar for an oral hearing if the Board decides to hold an oral hearing.
11The matter is referred to the Registrar.
12I remain seized.
"Anthony Brown"
for the Board