McGillivray v. Algoma University, 2009 HRTO 1861

Human Rights Tribunal of Ontario

B E T W E E N:

Maureen McGillivray

Applicant

-and-

Algoma University and Celia Ross

Respondents

INTERIM DECISION

Adjudicator: Brian Eyolfson

Date: November 3, 2009

Citation: 2009 HRTO 1861

Indexed as: McGillivray v. Algoma University

1This is an Application filed January 29, 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 because of disability in employment. The Application names Algoma University as an organizational respondent and Celia Ross, Alanna Bondar and Charles Wildman as individual respondents.

2The Tribunal served the Application on the respondents and the applicant’s union, the Ontario Secondary School Teachers Federation, District 35 (the “union”). In their Response to the Application, the respondents, Algoma University, Celia Ross and Charles Wildman, requested that the Application be deferred pending the completion of grievance proceedings and attached copies of three grievances. The respondent, Alanna Bondar, filed a separate Response and did not request deferral. The Responses were shared with the applicant and the applicant was invited to provide a Reply.

3The applicant did not file a Reply. Instead, the applicant filed a Request for Order During Proceedings (“RFOP”), seeking to amend her Application in terms of particulars an relief, to add an individual respondent, Karen Doyle, and to remove individual respondents, Alanna Bondar and Charles Wildman. The applicant attached an amended Application (Form 1) to the RFOP, and in it submitted that this is not an appropriate case for deferral. The respondents have not responded to the RFOP.

DEFERRAL REQUEST

4The respondents submit that the subject matter of the three grievances initiated by the applicant, which are continuing through the grievance/arbitration process, deal with issues which are, for all intents and purposes, identical to the issues raised in the Application. The first grievance, dated October 8, 2008, states that “[t]he employer has declared that the provision of union representation for [the applicant] at a meeting with her supervisor constitutes insubordination on the part of our member.” The second grievance, dated November 20, 2008, grieves the “application of discipline without just cause to [the applicant] regarding the provision of notice of an absence.” The third grievance, dated January 30, 2009, grieves the use of authority “in an arbitrary and discriminatory manner in relationship to the harassment complaint filed by [the applicant] in October 2008.” It alleges a violation of the Code. All of these matters appear to be referred to in the Application.

5The respondents submit that the first and second grievance have proceeded through the grievance process and are currently scheduled to be referred to arbitration but no dates have been scheduled. The respondents submit that, to the best of their knowledge, the applicant and the union seek to refer the third grievance to arbitration.

6The applicant submits, among other things, that the nature of the rights claimed and discrimination asserted are uniquely within the experience and expertise of the Tribunal and there is no assurance that a labour arbitrator will properly be able to address the nuanced and unique issues that arise from this complaint. The applicant notes that the grievance alleging a human rights violation has not been scheduled for arbitration and also that the union may elect not to proceed to arbitration. The applicant requests, therefore, that the Application proceed.

7The Tribunal may defer consideration of an application, on such terms as it may determine, on its own initiative or at the request of any party (Rule 14.1). The Tribunal will generally defer an application 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)

8The 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, Tribunal’s normal approach is to defer to the other proceeding (Blackman v. Ontario (Community Safety and Correctional Services, 2009 HRTO 970).

9In the present case, the applicant has filed grievances based on many of the same facts and issues that are set out in the Application. Although the applicant submits that the union may elect not to proceed to arbitration, there is no indication at this point in time that the grievances are not proceeding to arbitration. Rather, it appears that the grievances are proceeding to arbitration, although dates have not been set. While the applicant submits that the rights claimed are uniquely within the expertise of the Tribunal, the 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.

10In the circumstances, deferral is appropriate. The Tribunal orders the deferral of the Application pending the conclusion of the grievance and arbitration process.

11Where a party wishes to proceed with an application which has been deferred, the party must make a Request for an Order During Proceedings in accordance with Rule 19 within 60 days after the conclusion of the other proceeding (Rules 14.3 and 14.4).

RFOP

12As there does not appear to be any opposition to the applicant’s request to remove the individual respondents, Alanna Bondar and Charles Wildman, the Tribunal orders that they be removed as individual respondents. The style of cause is amended accordingly.

13In light of the Tribunal’s order that the Application be deferred pending the completion of the grievance and arbitration process, the remaining aspects of the applicant’s RFOP can be determined if and when the Application is re-activated.

14A copy of this Interim Decision will also be provided to Karen Doyle.

15I am not seized of this matter.