Ontario Labour Relations Board
Court File No.: 3908-99-U Date: 2000-10-17
David B. Grainger, Applicant v. Windsor-Essex Catholic District School Board, Responding Party v. Greater Essex County District School Board, Intervenor.
Before: Brian McLean, Vice-Chair.
Appearances: R. J. Potomski and David Grainger for the applicant; Paul Mullins for the responding party; no one for the intervenor.
Decision of the Board
1This is an application under section 96 of the Labour Relations Act, 1995 (the "Act") in which it is alleged that the responding party violated section 87(1) of the Act.
2By decision dated September 19, 2000 the Board, differently constituted, directed that the hearing scheduled for October 11, 2000 be confined to preliminary issues which might be raised by any party. A hearing was held on October 11, 2000 for this purpose. This decision deals with those issues.
3The background facts to this application are not in dispute. The Board's decision dated October 4, 2000 in Board Files 0708-99-U, 3628-98-U and 4112-98-U recites these facts as follows:
The material facts and allegations can be summarized briefly. The responding party is a public district school board, formed as a result of the 1998 merger of the Board of Education for the City of Windsor and the Essex County Board of Education. The applicant was employed as a teacher by the Essex Board. He was dismissed effective December 31, 1993. In June, 1995, a board of arbitration issued a majority decision upholding the dismissal after nine days of hearings. In June, 1996, the applicant applied for judicial review and, on October 13, 1998, a panel of Divisional Court remitted the matter to a new arbitration board, differently constituted. The responding party was refused leave to appeal in May, 1999. The Board is advised that the new arbitration board has now commenced hearing the matter.
The responding party has prohibited or "banned" the applicant from access to its property. The applicant is heavily involved in coaching the "Jumping Jacks" precision skipping team, an organization that uses school facilities by permit after-hours. Briefly put, the applicant claims that the ban imposed by the responding party is, in effect, in retaliation for his having commenced proceedings under the Act, contrary to subsection 87(1). The responding party asserts that the ban was imposed because of the alleged conduct of the applicant in respect of female students that gave rise to his dismissal from employment.
4The applicant was employed by the Greater Essex County District School Board ("the Public Board") which is the responding party in Board Files 0708-99-U, 3628-98-U and 4112-98-U. This application is against the Catholic School Board in the same area, the responding party Windsor-Essex Catholic District School Board ("the Catholic Board") which also banned the applicant from the schools in its jurisdiction.
5The applicant's assertion in this application is that the Catholic Board, which has a close relationship with the Public Board, banned him from Catholic School Board property in retaliation for his having filed a complaint against the Public Board. The Catholic Board's defence is that the applicant was banned, not for the complaint, but because it learned of his alleged inappropriate conduct and acted in accordance with the Education Act to protect the health and safety of students.
6The first preliminary issue raised was a request for reconsideration made by the applicant of the Board's decision dated September 7, 2000. Under the circumstances, I deferred this issue to the panel of the Board which made that decision.
7The employer had three arguments regarding why the Board either cannot or ought not to proceed with the hearing of this complaint. The first argument was that since the applicant is not and never was an employee of the Board, the application is inappropriate. I disagree with the Catholic Board's position. In my view, the protection afforded by section 87(1) of the Act extends to the Catholic Board because it is an employer, or as asserted by the applicant, a person acting on behalf of the employer, the Public Board.
8The Catholic Board's second argument is that there was a process open to the applicant to challenge the Catholic Board's decision to bar him and he did not avail himself of it. There are at least two difficulties with this argument. The first is that the applicant asserts that he did appeal the Catholic Board's decision but his appeal has never been heard. Second, although it is open to the Board to defer to other proceedings (particularly arbitration proceedings), it is not obligated to do so. Given that counsel for the Catholic Board acknowledges that there is little chance of the applicant succeeding in an appeal and given the issues before this Board and the Catholic Board, an appeal would be very difficult. I am not persuaded that the applicant's failure (to the extent there ever was such a failure) to pursue that appeal ought to cause the Board to dismiss or refuse to hear the application.
9Finally, the Catholic Board argues that the remedy sought by the applicant – the reinstatement of his privilege to conduct jumprope classes on Catholic Board property – is a remedy which the Board would never grant.
10I agree with the Catholic Board that under the current circumstances, it is very unlikely that even if the applicant were fully successful under the current circumstances the Board would make this remedy. The allegations against the applicant are extremely serious ones and the Board would be deeply concerned about ignoring them. However, there is no way to determine what the status of the allegations will be at the time of the hearing. It may be that the Public Board has reinstated his rights or teaching privileges that a Board of Arbitration has done so. Moreover, reinstatement of privileges to conduct activity on Catholic Board property is not the only remedy sought by the applicant. There may be other remedies which the Board could grant were it to find a violation of the Act.
11Accordingly, the Board cannot dismiss the application at this time. However, the Board cautions the parties that this decision should not be taken as an indication that the applicant has a strong case in this matter. There are significant problems with the application, particularly with the fact that the application is essentially based on nothing more than the timing of the Catholic Board's decision to bar the applicant and his decision to file an application against the Public Board. As I stated at the hearing, in my view, counsel for the Catholic Board's letter is nothing more than an indication that the Catholic Board will not reconsider its decision until the applicant's grievance has been arbitrated before a new panel. There appears to be nothing improper in that. Nevertheless, these are issues for the panel hearing the merits of this complaint to determine.
12I also note that this decision may appear at variance with the Board's decision dated October 4, 2000 which involved similar issues. In my view, however, the substantial difference between the facts of the two applications is that the applicant has an arbitration right against the Public Board in that case, while no such right exists here. While in the application against the Public Board the applicant has a full opportunity to clear his name, were I to dismiss the application at this time for the reasons asserted by the Catholic Board, the applicant would be left no other avenue to assert his complaint that the Board violated the Act.
13This matter is referred to the Registrar.
"Brian McLean"
for the Board