Clarifying the Code
Section 45.1 of the Code provides that the Human Rights Tribunal of Ontario (HRTO) may dismiss an application, in whole or in part, if it is “of the opinion that another proceeding has appropriately dealt with the substance of the application.” The challenge lies in deciding exactly when this applies. To help clarify the law, the OHRC intervened in two precedent-setting cases at the HRTO.
De Lottinville v. Ontario (Community Safety and Correctional Services), Claybourn v. Toronto Police Services Board et al., and Ferguson v. Toronto Police Services Board
In these cases, each of the applicants had previously filed complaints about the conduct of police officers under the Police Services Act (PSA). The PSA was amended in 2009 to establish the Independent Police Review Director (IPRD) and a revised public complaints process. The HRTO had to decide whether this complaints process was a proceeding that appropriately dealt with the human rights complaints.
The African Canadian Legal Clinic, the Metro Toronto Chinese & Southeast Asian Legal Clinic and the South Asian Legal Clinic of Ontario (the Coalition), the IPRD and the OHRC were granted leave to intervene in the Claybourn application.
We argued that the police complaints process is not a “proceeding” and does not appropriately deal with the substance of human rights applications, particularly in light of the different purposes of the complaints process (officer discipline) and Code (relief to victims of discrimination and removing discrimination).
The HRTO agreed with our position, ruling that section 45.1 of the Code should not be applied to dismiss an application because the same underlying allegations of misconduct have been addressed though the public complaints process under the PSA.
The Ontario Provincial Police has filed a notice of application for judicial review of the HRTO’s decision.
Maxwell v. Cooper-Standard Automotive Canada Limited
This case involved a man who was injured on the job. He received Workplace Safety and Insurance Board benefits, but ultimately lost his job because the employer felt it had satisfied the return to work and labour-market re-entry referral provisions of the Workplace Safety and Insurance Act. Cooper-Standard argued that the case should not be heard by the HRTO because it had already been dealt with through the WSIB process.
In an August 2013 interim decision, the HRTO found that the WSIB processto determine whether the applicant waseligible for Work Transition was not aproceeding within the meaning of s. 45.1. It was not an adjudicative decision nor was there a process for the applicant to dispute the respondent’s claim or appeal the referral for a Work Transition assessment. The process did not involve the application of an objective legal standard, did not give the applicant an opportunity to make submissions on the employer’s position, and did not include a right of appeal.
The HRTO also found that the WSIB had not appropriately dealt with the human rights issues.
Blending seniority and human rights: Lesperance v. Caressant Care Nursing and Retirement Homes Limited
We intervened in a case where a part-time nursing home employee alleged that her employer and union discriminated against her by agreeing to collective agreement provisions that did not allow her to accumulate seniority during two disability-related leaves of absence.
In mediation, in October and December 2013, the respondents agreed to change their policies and collective agreements so that seniority would continue to accrue when people are on disability leave. They also agreed to adjust the seniority of any other employees who had been affected by the discriminatory seniority provision.
The public interest remedies in this case will affect three nursing and retirement homes which together employ more than 140 part-time employees. The HRTO’s order incorporating the terms of settlement will also serve as a useful legal precedent to unions and employers negotiating seniority issues in future collective agreements.
Changing the bus stop: TB, MSB, and JBS v. Halton District School Board and Halton Student Transportation Services
In August 2013, we intervened in this case where the boardand transportation service did not agree to a mother’s request to have her children’s bus stop moved closer to her home because of her disabilities. Our goal was to help develop solutions that could be used by school boards across the province.
We took part in mediation with the parties, and helped them to reach a settlement. The board and transportation service agreed to move the stop closer to the family home, to seek the OHRC’s involvement in preparing and delivering training for its policy development and front-line staff on human rights accommodation and inclusivity, and to amend their transportation policies to accommodate parents with similar needs. The board and transportation service also agreed to recommend similar policy amendments to the Halton Catholic District School Board.