Nieves v. Toronto District School Board, 2011 HRTO 1372

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Alfonso Nieves

Applicant

-and-

Toronto District School Board

Respondent

-and-

Canadian Union of Public Employees, Local 4400

Intervenor

INTERIM DECISION

Adjudicator: Judith Keene

Date: July 21, 2011

Citation: 2011 HRTO 1372

Indexed as: Nieves v. Toronto District School Board

WRITTEN SUBMISSIONS BY

Alfonso Nieves, Applicant ) Self-Represented

Toronto District School Board, Respondent ) Grant Bowers, Counsel

Canadian Union of Public ) Mandy Wojcik, Counsel Employees, Local 4400, Intervenor )

1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). In his Application, the applicant alleges that, in responding to a complaint from him about a safety-related matter, the respondent was unwilling to continue previously-arranged accommodation of a disability. This Interim Decision deals with a request to defer and a request to intervene.

2The applicant admits that the Canadian Union of Public Employees, Local 4400, (“CUPE”) filed three grievances on his behalf which are in progress, and that the subject matter of the grievances is substantially the same as that of the Application. In filing its response, the respondent noted the existence of the grievances and of a complaint made by the applicant to the Ontario Labour Relations Board (“OLRB”) alleging a violation of the Occupational Health and Safety Act, R.S.O. 1990, c. O.1 (the “OHSA”). The respondent requested that the Application be deferred until these matters are dealt with.

3CUPE has filed a Request to Intervene received by the Tribunal on May 6, 2011. In its Request, it also requests that the Tribunal defer the Application until the grievances are dealt with.

4In his Reply, received on June 20, 2011, the applicant opposes the requests for deferral. Neither the respondent nor the applicant has responded to the Union’s Request and the time for doing so has elapsed.

THE REQUEST TO DEFER

5The information concerning the grievances was submitted by the respondent and CUPE. The first grievance was filed on September 24, 2010. According to the respondent, this grievance was forwarded to arbitration on November 16, 2010. The second grievance was filed on December 6, 2010, and was forwarded to arbitration on February 1, 2011. The third grievance was filed on January 6, 2011, and was heard by the respondent on February 7, 2011. The respondent states that the OHSA matter “was adjourned sine die by the Ontario Labour Relations Board for a period not exceeding one year on April 19, 2011”. The applicant does not contest these assertions.

6Copies of the grievances were submitted by the respondent. The first two simply allege violations of the collective agreement. Although sparsely worded, the third grievance does mention failure to accommodate and the “Human Rights Act”. As noted above, the applicant admits that they concern the matters raised in the Application.

7Neither the respondent nor CUPE have given any information about how soon the grievances might be resolved. There is no information about a hearing date for any of the outstanding matters, nor about any progress toward their resolution. This is the basis on which the applicant urges that the Application not be deferred. In a letter dated June 16, 2011, submitted with his Reply, the applicant states that he is capable of working with accommodation, but has not been at work since November 2010. He states that he is without health benefits and is in arrears on child support.

Is Deferral Appropriate in these Circumstances?

8Section 45 of the Code confirms the Tribunal’s authority to defer consideration of an application. The 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 particular circumstances of each case, whether deferral is the most fair, just and expeditious way of proceeding with the Application.

9In light of the lack of information concerning the progress of the grievances, and the consequent unlikelihood of duplication of proceedings, I find it is not appropriate to defer this Application. In the particular circumstances of this case, the most fair, just and expeditious outcome is to proceed with this Application. It is open to any party to repeat a request for deferral if a hearing date is set for an arbitration that is likely to consider substantially the same facts and issues.

THE REQUEST TO INTERVENE

10CUPE seeks to intervene in the Application on “a limited basis”. It asks to be copied with documents and forms, notified of any steps in the proceedings, given notice of any mediation and be allowed to attend and participate. It states that it has knowledge of the respondent’s policies and practices as well as its statutory responsibilities to its members.

11The Tribunal indicated in Boyce v. Toronto Community Housing Corporation, 2009 HRTO 131, that:

A union or association nearly always has an interest in a human rights application brought by an employee in a bargaining unit it represents when the application alleges discrimination in employment. Absent exceptional circumstances, the applicant’s bargaining agent will be granted intervention status in Tribunal proceedings where it requests it.

12I am satisfied that CUPE has the requisite interest in this Application, and it is accordingly granted leave to intervene. The union’s Request does not address the scope of CUPE’s intervention in any hearing that might be held in respect of this Application. I do not intend to deal with this issue as it is best determined by the adjudicator seized of the hearing.

13I am not seized of this matter.