Human Rights Tribunal of Ontario
B E T W E E N:
Deopaul Chintaman Applicant
-and-
Toronto District School Board, Craig Snider, Don Higgins, and Lisa Kivlichan Respondents
INTERIM DECISION
Adjudicator: Sherry Liang Date: March 7, 2011 Citation: 2011 HRTO 463 Indexed as: Chintaman v. Toronto District School Board
WRITTEN SUBMISSIONS
Deopaul Chintaman, Applicant ) Self-represented
Toronto District School Board, Craig Snider, ) Glorie Alfred, Counsel Don Higgins, and Lisa Kivlichan, Respondents )
Canadian Union of Public Employees, ) Mark Wright, Counsel Local 4400, Intervenor )
1This is an Application filed on January 4, 2010 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”).
2When it was filed, the Application was primarily based on allegations of discrimination in employment through the denial of promotions, on the grounds of race, colour, place of origin, ethnic origin and age. During the processing of the Application, the applicant was discharged from his employment with the respondent Board, and he added to his Application the allegation that the discharge was discriminatory and also a reprisal for previous human rights complaints. The Application also alleges that the applicant has been disciplined for discriminatory reasons.
3The applicant is represented in his workplace by the Canadian Union of Public Employees, Local 4400 (“CUPE”), which has filed a Request to Intervene in the Application. CUPE has filed grievances on behalf of the applicant alleging unjust discipline as well as unjust discharge. CUPE indicates that the discipline and termination grievances have been scheduled before an arbitrator on September 29 and October 19, 2011.
4By Interim Decision dated January 21, 2011, the Tribunal requested that the parties and CUPE make submissions on whether it is appropriate to defer this Application pending the conclusion of the grievance arbitration. The applicant and CUPE oppose deferral; the Board supports deferral.
5On my review of the material before me, I find that deferral of the Application is appropriate.
6The 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. See Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42.
7The 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.
8Even where there is not a complete overlap of issues, the Tribunal may defer an application where there is a risk that concurrent proceedings will lead to inconsistent decisions on facts or law. Some 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.
9In this case, while it is not apparent that the grievance arbitration will deal with all the issues raised by the Application, such as discriminatory denial of promotion, it is apparent that there is substantial overlap between the facts and issues covered by the Application and those referred to labour arbitration. In both, a central issue is the termination of the applicant’s employment and the reasons for that termination. The arbitration process is also underway. In these circumstances, I am satisfied that deferral is appropriate.
10The Application will therefore be deferred pending the completion of the arbitration proceeding. The Tribunal directs the parties’ attention to Rules 14.3 and 14.4 which outline the process by which the Application may be brought back on after the arbitration has been concluded.
11The Tribunal will consider the Request to Intervene by CUPE if this Application is re-activated.
12I am not seized of this matter.
Dated at Toronto this 7th day of March, 2011.
”signed by”____________
Sherry Liang
Vice-chair