Bruno v. Toronto Catholic District School Board, 2011 HRTO 1846

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Rita Bruno

Applicant

-and-

Toronto Catholic District School Board

Respondent

INTERIM DECISION

Adjudicator: Sherry Liang

Date: October 13, 2011

Citation: 2011 HRTO 1846

Indexed as: Bruno v. Toronto Catholic District School Board

1This is an Application filed on July 8, 2011 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant alleges discrimination in employment on the grounds of disability and sex, as well as reprisal. The Application is based on events beginning in 2003, and continuing to the present.

2The purpose of this Interim Decision is to address the applicant’s Request for an Interim Remedy, as well as the question of whether the Application should be deferred pending the completion of related grievance proceedings. For the reasons given below, I have decided to deny the Request for an Interim Remedy, and to defer the Application.

INTERIM REMEDY

3The applicant is a teacher employed by the respondent Board. She states that since September 2009, she has been in a full-time guidance teacher position without classroom duties, in accordance with medical restrictions. She alleges that in June 2011, she was advised that she would be compelled to teach one class as part of her duties starting in September. The applicant alleges that this new teaching assignment is contrary to her medical restrictions, as well as constituting a reprisal. The Board takes the position that there is no medical reason the applicant cannot fulfill the assignment given to her for September, which consists of guidance plus teaching one class in the subject Careers.

4In the Request, filed on July 26, 2011, the applicant asks the Tribunal to order the Board to rescind the requirement that she teach one class and return her to a full time guidance counselling assignment. In describing the harm that will ensue if her Request is not granted, she states that she fears a regression in her health.

5Since the time the Request was filed, further events have ensued. The applicant attended at the workplace on September 6, 2011, and taught one class in Careers, but subsequently advised she was unable to continue. The Board arranged for another teacher to teach the class on the following several days. It appears that the applicant has not been in the workplace since September 12, 2011. The Board maintains its position that she has not substantiated the need, through medical evidence, for an assignment in the workplace that excludes classroom duties. It states that it is prepared to allow her to remain in a guidance-only position with a corresponding reduction in pay to reflect removal of the teaching assignment, pending the receipt of better medical evidence.

6The conditions for awarding an interim remedy are set out in Rule 23.2:

The Tribunal may grant an interim remedy where it is satisfied that:

a) the Application appears to have merit;

b) the balance of harm or convenience favours granting the interim remedy requested; and,

c) it is just and appropriate in the circumstances to do so.

7Normally, the Tribunal’s power to order respondents to do or refrain from doing something is contingent upon a finding that they have violated the Code. Interim remedies are extraordinary in that they constitute an order to do or refrain from doing something in the absence of a finding that the Code has been violated. For this reason, an applicant bears a “significant onus” in establishing that the Tribunal should award an interim remedy: TA v 60 Montclair, 2009 HRTO 269.

8In TA v. 60 Montclair, the Tribunal stated that since the Code is remedial legislation, the fundamental consideration in determining whether to award an interim remedy is “whether an interim remedy is necessary to facilitate and ensure the Tribunal is able to award a complete, appropriate and effective remedy at the end of a hearing, should a violation of the Code be found.”

9The Tribunal has also stated that it should exercise particular caution when it is asked to provide a financial interim remedy before any determination on the merits of an Application:

This is particularly so given that the Tribunal has not developed a practice requiring an applicant for interim relief to give an undertaking to repay a respondent, should the main Application ultimately fail. If the Tribunal orders interim relief against a respondent whose position is ultimately vindicated at the conclusion of the case, the respondent may have no way of being repaid for any damages it incurred from the interim remedy. This is different from the courts, where an undertaking (or sometimes even the posting of a bond) is required as a condition of obtaining interim remedies (referred to in the courts as “interlocutory injunctions”). The absence of this kind of assurance suggests a need for caution in granting an interim remedy. Lewis v. Markham Stouffville Hospital, 2009 HRTO 188

10I will assume for the present purposes, without deciding, that the Application meets the first criterion in Rule 23.2 above. In the circumstances of this case, it has not been established that the balance of harm or convenience favours granting the interim remedy requested, or that it is just and appropriate in the circumstances to do so.

11I am not convinced that the interim remedy requested is necessary to further the remedial objects of the Code. Since the Request was filed, the nature of the issues has shifted somewhat, from a concern on the part of the applicant that she would be obliged to perform duties that she feels are detrimental to her health, to the possibility that the applicant will be returning to a reduced workload, with a corresponding salary reduction.

12At the present time the applicant may, if she is medically fit, resume her duties as a guidance counsellor. The Board has stated that it will continue to re-assign her teaching responsibilities and will accordingly pay her a reduced salary. If the applicant’s position is ultimately vindicated before this Tribunal, the material does not establish that the remedies she requests (monetary compensation and to “leave my position alone”) would be unavailable at the end of the hearing, absent the interim remedy.

13I find that the balance of harm or convenience does not support the granting of the interim remedy requested, and it would not be just and appropriate in the circumstances to do so.

DEFERRAL

14The applicant indicated in her Application that the facts of her Application are part of a grievance proceeding that is still in progress. She did not request that the Application be deferred to the other process. In the Interim Decision of August 24, 2011, 2011 HRTO 1580, the Tribunal requested the parties to provide submissions on whether the Application should be deferred to the grievance proceeding.

15The applicant opposes deferral of her Application. She states that deferral would not be just as “the situation is having considerable impact on the Applicant’s wellbeing”. In some of her submissions she expresses some dissatisfaction with respect to the Association’s role in certain events in 2005, but it is apparent from the documents provided by the applicant and the respondent that the Association has had an active role in assisting the applicant with respect to the recent workplace disputes covered by this Application. She also states that it is her understanding that the respondent has been unwilling to engage in mediation of her grievance.

16The Ontario Catholic Teachers’ Association (“the Association”) filed submissions on September 28, 2011 on the question of whether the Application should be deferred, describing the relationship between this Application and certain grievances. It states that it submitted three grievances on the applicant’s behalf on September 12, 2005, February 18, 2010 and September 14, 2011. The Association states that the first grievance has been fully and finally resolved by way of Minutes of Settlement dated February 8, 2010.

17The Association states that with the exception of the issue of the applicant’s teaching assignment for September 2011 (and presumably those covered by the settlement), the alleged events in the Application are largely the same events which comprise the February 18, 2010 grievance. The parties have agreed on an arbitrator/mediator and are currently in the process of scheduling mediation with respect to that grievance.

18The grievance of September 14, 2011 alleges that the Board has engaged in reprisal against the applicant and has failed to provide her with assignments in accordance with her medical restrictions. She seeks redress that includes damages and appropriate accommodation.

19Given the substantial similarity between the subject matter and remedial requests in the Application and the grievances, the Association submits that deferral of the Application is appropriate.

20The Board’s submissions on deferral were made on September 13, 2011, just prior to the last grievance. Based on the other grievance pending, it submits that deferral would be appropriate. It states that it has not refused the Association’s request to set a date for mediation of the grievance, has requested potential dates from the Association’s counsel, and remains prepared to attend mediation.

21Both the Board and the Association have signalled their willingness to have the issues covered by the two remaining grievances dealt with together through the same grievance arbitration/mediation process.

22The Tribunal may defer consideration of an application, on such terms as it may determine, and on its own initiative or on the request of a 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. 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.

23The 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).

24The 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.

25In 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 grievances. The Application will therefore be deferred pending the completion of the grievance process.

26The 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.

27The other preliminary issues will be dealt with following re-activation of the Application if necessary.

28I am not seized of this matter.