Rusty Barron v. York Region District School Board, 2011 HRTO 311

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Rusty Barron Applicant

-and-

York Region District School Board Respondent

-and-

Canadian Union of Public Employees and its Local 1734 Intervenor

INTERIM DECISION

Adjudicator: Naomi Overend Date: February 14, 2011 Citation: 2011 HRTO 311 Indexed as: Barron v. York Region District School Board

1This Interim Decision deals with the Request to intervene by CUPE Local 1734 ("CUPE") and the respondent's Request to defer the Application.

2The applicant filed this Application on April 29, 2009, alleging discrimination in employment on the basis of disability and reprisal contrary to the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the "Code").

3The applicant is a member of CUPE, which filed a Request to Intervene (Form 5) on June 30, 2009. The applicant filed a Response to CUPE's request on July 15, 2009 in which he opposes its intervention. On July 22, 2009, the applicant filed a grievance alleging discrimination on the basis of disability. Since then, CUPE has filed an additional nine grievances on his behalf, the last of which relates to the termination of the applicant's employment from the respondent Board on November 15, 2010.

4On December 20, 2010, the respondent filed a Request for Order During Proceeding (Form 10) asking the Tribunal to defer the Application pending the outcome of the grievance arbitration process. In the Request, the respondent advised that an arbitrator had been appointed and commenced the arbitration proceedings on December 3, 2010, at which time she took jurisdiction over the ten above-noted grievances.

5The applicant states that he did not receive the initial Request for deferral, but has subsequently received a copy of it. The applicant did not file a Response to the Request for Order (Form 11), but did briefly state the reasons for his opposition to deferral in a letter to the Tribunal dated January 17, 2011. He has since indicated that he wishes to rely on that letter.

REQUEST TO INTERVENE

6The Tribunal indicated at para. 6 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.

6The applicant submits that he has had a fractious relationship with CUPE and that it has not acted in his best interest. He states "Local 1734 are not capable of intervening in a fair and unbiased matter." At this stage, and on the basis of written submissions, it not appropriate for me to make determinations about the nature of CUPE's representation of the applicant.

7The question is not whether CUPE would be supportive of the applicant in this process, but whether CUPE has an interest in the outcome of these proceedings. As noted by CUPE in its request to intervene, its interest relates to the compliance with the Collective Agreement and its expertise in the workplace issues with respect to this particular employer.

8I am satisfied that CUPE has the requisite interest in this Application. Accordingly, CUPE is granted leave to intervene. Should the Application proceed to hearing, the scope of CUPE's intervention will be determined by the adjudicator hearing the matter.

DEFERRAL

9The Tribunal may defer consideration of an application, on such terms as it may determine, and on its own initiative (Rule 14.1). 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.

10The 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).

11The 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.

12In this case, the applicant opposes deferral of his Application because he states that (1) the arbitration proceedings on December 3, 2010 went ahead without him; and (2) he believes this is simply an attempt to delay proceedings as he understands that the next dates for the arbitration will not be until September 2011.

13According to the Interim Order of the arbitrator, Paula Knopf, she was advised by CUPE that the applicant had told it that he was "in no condition to attend" any meeting, including the arbitration. Over the objection of the employer, and in the absence of any medical documentation justifying his non-attendance, Arbitrator Knopf granted CUPE's request to adjourn the arbitration proceedings. One of the conditions on which the adjournment was granted was that arbitration proceed "on the earliest mutually convenient day(s) available to the arbitrator and the parties."

14Despite the applicant's submissions that the request to defer is an attempt by the respondent to delay his case, on the face of the record, the arbitration proceeding appears to be proceeding expeditiously, and that the delay was occasioned by his non-attendance.

15The respondent submits that the substance of the Application is "identical" to those grievances over which Arbitrator Knopf is seized. In fact, the grievances referred to arbitration not only deal with the allegations covered by the time period of the Application, but also the contentious events occurring between the applicant and the respondent in the period since the Application was filed.

16Moreover, the allegations in the Application deal with matters that appear to be both within the jurisdiction of the Tribunal and also labour relations matters that appear to be outside the Tribunal's jurisdiction. An arbitrator can deal with all these matters, whereas the Tribunal would be limited to only those allegations within its jurisdiction.

17In view of the above, the Tribunal is of the view that deferral to the grievance process is appropriate. The Application will be deferred pending the completion of the grievance process.

18The 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.

19I am not seized of this matter.