Slater v. Waterloo Catholic District School Board, 2009 HRTO 1061

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Nancy Slater

Applicant

-and-

Waterloo Catholic District School Board, Janet Kauk, Sandra DeLangis, Lena Kidd and Cindy Thiel

Respondents

INTERIM DECISION

Adjudicator: Brian Eyolfson Date: July 16, 2009 Citation: 2009 HRTO 1061 Indexed as: Slater v. Waterloo Catholic District School Board

1This is an Application filed on January 14, 2009, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination in employment on the basis of disability. In their Responses, the respondents request that the Application be deferred pending the completion of a related grievance proceeding. One individual respondent, Janet Kauk, also requests early dismissal of the Application because of the grievance. The Canadian Union of Public Employees (the “Union”) has submitted a request to intervene. This Interim Decision deals with the respondents’ requests to dismiss and defer.

REQUEST FOR DISMISSAL

2The Request that the Application be dismissed because the grievance process has in whole or in part appropriately dealt with the substance of the Application is denied, as the grievance process does not appear to have concluded and is still proceeding.

REQUEST FOR DEFERRAL

3The organizational respondent submits that the allegations which form the substance of the Application are currently the subject of a grievance, and enclosed with its Response a copy of a grievance dated March 10, 2009, filed on the applicant’s behalf by the Union. The grievance alleges, in part, that the employer violated the Code and seeks remedies including reimbursement for lost time, adherence to the Code and that a policy be instituted to accommodate the applicant’s medical needs. In her Reply, the applicant indicates that she will agree to defer this matter.

4The Tribunal may defer consideration of an application, on such terms as it may determine, and on its own initiative (Rule 14.1). The Tribunal has stated that deferral is not automatically invoked simply because the parties are involved in other legal proceedings. It is a discretionary measure that the Tribunal exercises on the basis of the circumstances in each case. Absent good reason, applicants and respondents before the Tribunal are entitled to expect the Tribunal to take timely action to resolve complaints of discrimination brought before it.

5The Tribunal has generally deferred applications where there is an ongoing grievance under a collective agreement based on the same facts and human rights issues. In explaining this approach, the Tribunal has referred to the fact that the Supreme Court of Canada has affirmed that grievance arbitrators have not only the power but also the responsibility to implement and enforce the substantive rights and obligations of human rights and other employment-related statutes as if they were part of the collective agreement (Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42).

6The Supreme Court thus confirmed that human rights tribunals are not the only decision-makers that can decide human rights claims. Where the parties are already engaged in a concurrent legal proceeding in which they are raising the same human rights issues before a decision-making body with the authority to make determinations about those issues, the orderly administration of justice favours deferral to the other proceeding. In such a scenario, the Tribunal’s normal approach is to defer to the other proceeding (Blackman v. Ontario (Community Safety and Correctional Services), 2009 HRTO 970).

7In the present case, the applicant has a grievance based on substantially the same facts as the Application, alleging that her employer violated the Code and seeking remedies for the alleged violation. While it is not clear what stage in the process the grievance is at, if it proceeds to arbitration, an arbitrator will have the authority to deal with the human rights issues raised in the grievance. There are no circumstances that would cause the Tribunal to depart from its normal approach.

8The Application will therefore be deferred pending the completion of the grievance process. It is not necessary to deal with the Union’s request to intervene at this point in time.

9The Tribunal directs the parties’ attention to Rules 14.3 and 14.4 which outline the procedure by which the Application may be brought back on after the conclusion of the grievance process.

10I am not seized.