Patricia Bristow v. District School Board Ontario North East, 2009 HRTO 636

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Patricia Bristow

Applicant

-and-

District School Board Ontario North East

Respondent

INTERIM decision

Adjudicator: Judith Keene

Date: May 14, 2009

Citation: 2009 HRTO 636

Indexed as: Bristow v. District School Board Ontario North East

1This is an Interim Decision in respect of an Application filed on March 16, 2009, under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”). The applicant alleges discrimination in employment on the ground of disability.

2The Tribunal issued an Interim Decision, 2009 HRTO 380, requesting written submissions on the issue of deferral. The respondent and the applicant’s union, the Ontario Secondary School Teachers’ Federation (the “OSSTF”) made submissions, and the applicant replied to their submissions.

3It is clear that the applicant‘s grievance addresses nearly all of the issues in her Application. A date for arbitration in that matter is set for October 8, 2009.

4The Tribunal will generally defer an application where there is an ongoing grievance under a collective agreement based on the same facts and issues, although the Tribunal must also consider, in light of particular circumstances of each case, whether deferral is the most fair, just and expeditious way of proceeding with the application. In this case, the parties have not identified any circumstances that would cause the Tribunal to depart from its normal approach. The facts and issues raised by this Application are part of a grievance process that is in progress. 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 Social Services Administration Board v. O.P.S.E.U., Local 342, 2003 SCC 42.

5The applicant is not completely satisfied with the union’s actions to date in response to her grievances. However, the grievance alleges that the respondent failed to communicate appropriately with the union. The applicant may be better placed to accurately assess the union’s response after the arbitration.

6In these circumstances deferral is appropriate. The Tribunal orders the deferral of the Application pending the conclusion of the grievances.

7After the conclusion of the arbitration, the applicant may wish to proceed with this Application. Where 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).

THE REQUEST TO ADD THE UNION AS A PARTY

8The respondent has filed a Request for an Order during Proceedings to ask that the applicant’s union, the OSSTF, be added as a party.

9In its Response, the OSSTF has pointed out that the allegations made in the Application are directed to interactions in 2006-07 between the applicant and a President of the OSSTF who left office in September 2007. The OSSTF states that the past President disposed of her notes after leaving the position in 2007, and that the OSSTP would be prejudiced in attempting to deal with an Application under these circumstances.

10In view of my decision to defer, the OSSTF’s submissions and the fact that the arbitration may deal with the OSSTF issues to the applicant’s satisfaction, the Tribunal will deal with the respondent’s Request if and when this Application is continued after the arbitration.

11I am not seized of this matter.