Jeewa v. Toronto District School Board, 2010 HRTO 1993

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Mohammed Jeewa

Applicant

-and-

Toronto District School Board, Ira Applebaum and Verna Lister

Respondents

-and-

Elementary Teachers Federation of Ontario

Intervenor

INTERIM DECISION

Adjudicator: Jay Sengupta

Date: September 29, 2010

Citation: 2010 HRTO 1993

Indexed as: Jeewa v. Toronto District School Board

WRITTEN SUBMISSIONS BY

Mohammed Jeewa, Applicant ) On his own behalf

Toronto District School Board, ) Grant Bowers, Counsel

Ira Applebaum and Verna Lister, ) Avneet Grewal, Student-at-law

Respondents )

Elementary Teachers Federation of Ontario, ) Robyn White, Counsel

Union )

1This is an Application filed June 10, 2009 under section 34 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 a previous Interim Decision, 2010 HRTO 1643, the Tribunal sought the parties' submissions on the issue of deferral. Those submissions have now been received. Both the applicant and the intervenor support deferral, with the applicant expressing a desire for a speedy resolution of the grievance. The respondents continue to seek dismissal of the Application on a number of grounds but indicate that if the matter is not dismissed, they too support deferral of the Application until the related grievance is dealt with.

3The 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.

4The 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).

5The 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.

6In 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. If the applicant believes, on conclusion of the process, that his human rights issues have not been adequately addressed, he may ask to have his Application brought back on before the Tribunal.

7There are a number of additional outstanding Requests for Order During Proceedings. The Tribunal will deal with them if necessary if the matter is brought back before the Tribunal.

8The Application will therefore be deferred pending the completion of the grievance process.

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.