Nash v. Ottawa-Carleton District School Board, 2010 HRTO 1387

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Lisa Nash

Applicant

-and-

Ottawa-Carleton District School Board and Barry Armstrong

Respondents

INTERIM DECISION

Adjudicator: Jay Sengupta

Date: June 21, 2010

Citation: 2010 HRTO 1387

Indexed as: Nash v. Ottawa-Carleton District School Board

1This is an Application filed on October 8, 2009, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). This Interim Decision deals with the issue of whether the Application should be deferred pending the completion of a related grievance proceeding.

2In the Application, it is not clear whether the applicant takes the position that some or all of the facts of the Application are part of a union grievance proceeding that is still in progress. In correspondence dated January 15, 2010, she indicates that, along with her union, she is considering certain proposals made during the course of the grievance proceeding. In other parts of the Application that was filed some months earlier, she appears to suggest that the grievance has been concluded and that since then, further accommodations have become necessary and those are the issues she is raising in her Application. However, she indicates she has not been shown any documents or been asked to sign anything relating to the grievance

3The respondent employer takes the position that the subject matter of the grievance is substantially the same as that of the Application; that the grievance claims, among other things, violation of the Code; that the grievance is proceeding in accordance with the provisions of the collective agreement in place between the employer and the OSSTF; and that the process has not yet concluded. They seek to have the Application deferred pending conclusion of the grievance.

4Although served with a copy of the Application, Response and Notice of Respondent’s Request to Defer, the applicant’s union has not made any submissions on the question of deferral.

5The 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.

6The 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).

7The 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.

8In this case, it is apparent that there is substantial overlap between the facts and human rights issues covered by the Application and those referred to in the grievance. The matter is still live and the grievance process has not concluded. It is not yet apparent whether or not the applicant’s grievance will be referred to arbitration. But if the applicant believes, on conclusion of the process, that her human rights issues have not been adequately addressed, she may ask to have his Application brought back on before the Tribunal.

9The Application will therefore be deferred pending the completion of the grievance process.

10The 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.

11I am not seized of this matter.