Colligan v. Ottawa-Carleton District School Board, 2010 HRTO 622

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Terry Colligan

Applicant

-and-

Ottawa-Carleton District School Board

Respondent

INTERIM DECISION

Adjudicator: Mary Truemner

Date: March 23, 2010

Citation: 2010 HRTO 622

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

1This is an Application filed on May 22, 2009, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), which alleges discrimination in employment on the basis of disability. This Interim Decision deals with the respondent’s request that the Tribunal defer the Application pending the outcome of a grievance proceeding.

BACKGROUND

2The applicant has a long history of employment with the respondent. Since 1997, when he suffered an injury, he has needed to seek accommodations in the form of modified work. The applicant is presently not working, and he is receiving Long Term Disability Benefits. The applicant alleges that the respondent has taken the position that it will no longer accommodate all of his disabilities. The applicant also alleges that he was harassed at work because of his disability and that there was a poisoned work environment.

REQUEST TO DEFER

3The applicant’s union filed a grievance on September 3, 2008, alleging that “Terry Colligan was informed on May 27, 2008 that the Employer can no longer accommodate his workplace injury due to his claim being denied.” In its Response filed December 14, 2009, the respondent requests that the Application be deferred pending a decision in the grievance proceeding. The respondent argues that the substance of this Application will be dealt with by a Board of Arbitration. The hearing was to be on January 19, 2010, but neither of the parties has written to the Tribunal since that date to state that a decision has been made on the grievance.

4The applicant did not choose to file a Reply, and has therefore not addressed the respondent’s request for a deferral although he was specifically requested to do so by the Tribunal.

5Pursuant to Rule 14.1 of the Tribunal’s Rules of Procedure, the Tribunal may defer consideration of an Application, on such terms as it may determine, at the request of any party. 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.

6Deferral of an application seeks to ensure that proceedings dealing with the same facts or issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law. Some of the factors that may be relevant in deciding whether to defer consideration of an application before the Tribunal are the subject-matter of the other proceeding, the nature of the other proceeding, the type of remedies available in the other proceeding, and whether it would be fair overall to the parties to defer, having regard to the status of each proceeding and the steps that have been taken to pursue them: Klein v. Toronto Zionist Council, 2008 HRTO 189.

7The Tribunal will generally defer an application where there is an ongoing grievance under a collective agreement based on the same facts and issues. However, the Tribunal must also consider, in light of the particular circumstances of each case, whether deferral is the most fair, just and expeditious way of proceeding with the application.

8As stated in Leblanc v. Toronto (City), 2009 HRTO 960, even where concurrent legal proceedings do not clearly engage human rights issues, but raise facts or issues which overlap with those before the Tribunal, the Tribunal will consider whether to defer based on other factors, such as the subject matter of the other proceeding, its nature, the type of remedies available, the status of the other proceeding and steps that have been taken to pursue it. 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).

DECISION

9In this case, May 27, 2008, is the date indicated in the Application as the date of the last event of discrimination. It is also the date indicated in the grievance as the date of the event justifying the grievance. The issue that will be addressed in the arbitration hearing is that the respondent is not accommodating the applicant's disability and providing him with work. This appears to be the primary issue in the Application. Accordingly, there is a significant overlap of facts and human rights issues in the grievance proceedings and the Application.

10Given the significant overlap of facts and issues in the grievance proceeding and the Application, and given a grievance arbitrator’s responsibility to implement and enforce the Code, the respondent’s request to defer the Application is granted.

11Following the conclusion of the grievance and arbitration procedure, the applicant may seek to bring the Application back on before the Tribunal. In that situation, the applicant should follow Rules 14.3 and 14.4 of the Tribunal’s Rules of Procedure (available on our website, www.hrto.ca).

12I am not seized.