Cunningham v. Toronto District School Board, 2011 HRTO 1054

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Nohemy Cunningham Applicant

-and-

Toronto District School Board, Kathryn Rumble, Rosemarie Hobbins-Coombs, Pat Pild and David Breckon Respondents

Interim Decision

Adjudicator: David Muir Date: June 1, 2011 Citation: 2011 HRTO 1054 Indexed as: Cunningham v. Toronto District School Board

1This is an Application filed on December 31, 2008, under section 53(3) of Part VI of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). This decision deals with whether or not this Application should be deferred pending an arbitration proceeding respecting a grievance filed by the applicant.

2The human rights complaint (the "complaint") underlying this Application appears to have been filed with the Ontario Human Rights Commission in June 2006. It is generally alleged by the applicant that her right to be free from discrimination in employment was violated by her employer, the Toronto District School Board, and several of its employees. The essential nature of the complaint is that the applicant experienced differential treatment because of her race and place of origin and because she was perceived to be a person with a disability. The applicant self-identifies as a "latin" person. A companion complaint alleging discrimination by the applicant's bargaining agent was dismissed pursuant to section 45.1 of the Code (2011 HRTO 658).

3The Tribunal previously directed the parties and the applicant's bargaining agent to provide their submissions on the question of whether it would be appropriate to defer the matter. The parties sought an extension of time on two occasions on the basis that the first day of the arbitration was scheduled for May 17, 2011, and then further because the arbitrator would be releasing an interim decision. The Tribunal allowed both requests, finally directing the parties to deliver and file their submissions on or before May 27, 2011. The respondents have provided their submissions; the applicant has not. The applicant's bargaining agent takes no position on this issue.

4Section 45 of the Code confirms the Tribunal's authority to defer consideration of an Application. Under Rule 16 of the Tribunal's Rules of Procedure for Transitional Applications, the Tribunal may, on its own initiative, defer consideration of an application after providing notice of its intention to do so to all parties and giving them an opportunity to make submissions.

5Deferral of an application ensures that proceedings dealing with the same issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law. Deferral is not automatically invoked simply because the parties are involved in other legal proceedings.

6Some 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.

7I am satisfied that the most fair, just and expeditious manner of proceeding is to defer this Application pending the arbitration proceeding. As has been said many times, the Tribunal will normally defer an Application where there is an ongoing grievance arbitration involving the same parties and the same or similar issues. There is no question in this case that there is considerable overlap between the issues in the two proceedings. In addition to substantial overlap between the underlying factual issues, the respondent employer now states that the arbitrator will very likely be called upon by one or both parties to consider and apply the Code in her deliberations.

8In all the circumstances, I find that it would be inappropriate to have these two proceedings running concurrently thereby raising the spectre of inconsistent findings of fact and law on key common issues, as well as the likely unnecessary use of institutional and private resources.

9The Tribunal directs the parties' attention to Rule 16 of the Tribunal's Rules of Procedure for Transitional Applications, which outlines the process by which an application may be brought back on after an application has been deferred.

10I am seized of this Application.