Colella v. Toronto Catholic District School Board, 2011 HRTO 1289

Human Rights Tribunal of Ontario

B E T W E E N:

Anna Colella

Applicant

-and-

Toronto Catholic District Catholic Board

Respondent

INTERIM DECISION

Adjudicator: Alan G. Smith

Date: July 6, 2011

Citation: 2011 HRTO 1289

Indexed as: Colella v. Toronto Catholic District School Board

WRITTEN SUBMISSIONS BY:

Toronto Catholic District School Board, ) Sharon Duffy,

Respondent ) Counsel

Canadian Union of Public Employees, ) Ryan Goldvine, Counsel

Local 966, Interested Party )

INTRODUCTION

1This is an Application filed April 8, 2011, pursuant to section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, alleging discrimination based on disability by the employer respondent.

2This interim decision deals with a Notice of Tribunal Intent to Defer (NOID) by which the Application would be deferred pending the outcome of the ongoing workplace grievance-arbitration process undertaken by the applicant and the respondent.

3The Registrar delivered the NOID to the applicant, respondent and the applicant’s bargaining agent on May 16, 2011. In that correspondence the parties were advised that written submissions with regard to the Request to Defer must be filed with the Tribunal by June 16, 2011.

4No submissions regarding the Request to Defer were received from the applicant.

5On June 16, 2011, the respondent advised that it is in agreement with deferral of the Application pending the outcome of the arbitration hearing of the applicant’s April 12, 2010, grievance. The respondent noted that arbitration of the grievance was already underway with scheduled resumption to take place August 23, 2011, and again October 11-13, 2011.

6The applicant’s bargaining agent, Canadian Union of Public Employees, Local 966, advised on June 15, 2011, that they took no position with regard to deferral of the Application.

DECISION

7Deferral of an application ensures that proceedings dealing with the same issues do not run concurrently, raising the possibility of inconsistent decisions on facts or law.

8While deferral is not automatic, it is granted to avoid adjudicative duplication. The Tribunal has held that some of the factors that may be relevant in deciding whether to defer consideration of an application 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., see Christianson v. College of Physicians and Surgeons, 2009 HRTO 438, at para. 10, and Groves v. Ontario (Community Safety and Correctional Services), 2010 HRTO 1779.

9The Tribunal has generally deferred applications where there is an ongoing grievance under a collective agreement based on the same facts and human rights issues: Blackman v. Ontario (Minister of Community Safety and Correctional Services), 2009 HRTO 970 at para. 5. 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 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.

10The Tribunal finds it appropriate to defer this Application pending the completion of the grievance process. The key issue at the heart of that grievance, the termination of the applicant’s employment on April 8, 2010, is also the key issue covered by this Application. There may be issues raised by the Application that go beyond those that will be litigated before the arbitrator. However, given the considerable factual overlap between the two proceedings, the potential for the arbitration to determine some of the issues in this Application, and the stage of that arbitration process, the rational and orderly litigation of the various issues between this applicant and her employer favour deferral, see O’Brien v. Burlington (City), 2009 HRTO 1818 and Chau v. Workright Inc., 2011 HRTO 598.

ORDER

11In these circumstances, the Tribunal finds that the most fair, just and expeditious approach is to defer consideration of this Application pending the conclusion of the grievance arbitration process. The Tribunal directs the parties’ attention to Rules 14.3 and 14.4 which outline the process by which a party may request, in accordance to Rule 19, the Tribunal to proceed with an application after the conclusion of another process.

12I am not seized of this matter.