Sehdev v. Halton District School Board, 2019 HRTO 1190

Ms. Sehdev filed an HRTO application alleging discrimination in employment because of disability contrary to section 5 of the Code. She alleged both her employer, the Halton District School Board and her employee association, the Halton District Educational Assistants Association, failed to accommodate her disability related needs in the workplace.

The HRTO ordered a summary hearing with respect to her allegations against the association on the basis there was no reasonable prospect of Ms. Sehdev being able to prove discrimination by the association. Neither Ms. Sehdev nor her legal representative attended at the summary hearing and her applications against her employer and her association were deemed abandoned and dismissed. Ms. Sehdev’s subsequent first request for reconsideration at the HRTO was also dismissed.

Ms. Sehdev then requested a second reconsideration at the HRTO, even though such second requests are rarely requested and more rarely granted. She argued the HRTO’s summary hearing was intended to deal only with her allegations against her association (and not her employer) and the HRTO erred in dismissing her whole application and those parts of her application alleging discrimination by her employer.

Ms. Sehdev argued the HRTO Rules of Procedure 26.5(b) and (c) applied to her case in that she was entitled to notice, but through no fault of her own, did not receive notice of any summary hearing about her allegations against her employer and the HRTO deemed abandonment decision was in conflict with HRTO case law and procedure and involved a matter of public importance.

The HRTO held the facts of the case raised exceptional circumstances and it was appropriate to consider Ms. Sehdev’s second request for reconsideration. The HRTO reviewed the Notice of Summary Hearing and other documentation indicating that the summary hearing was intended to address the question of whether the application against the association, but not only the employer, should be dismissed as having no reasonable prospect of success.

The Tribunal found:

  • that there was real question as to whether Ms. Sehdev had received effective notice of any summary hearing involving her allegations in her application against her employer;
  • that it was reasonable for Ms. Sehdev to understand the HRTO summary hearing was to deal only with her allegations against her association and would not have understood that any non-attendance by her at the summary hearing could also lead to a deemed dismissal of the allegations in her application against her employer; and
  • that any question about a lack of notice to Ms. Sehdev had to be resolved in her favour as a matter of procedural fairness.

The Tribunal ordered:

  • that Ms. Sehdev’s second request for reconsideration of the HRTO decision dismissing her application against her employer as abandoned be granted; and
  • that a mediation date be scheduled at the HRTO given that the parties had agreed to mediation in the application

To read the full decision, visit Canlii.