Human Rights Tribunal of Ontario
B E T W E E N:
Jennifer Kolins
Applicant
-and-
Toronto District School Board, Mabel Ho, Maria Fowler, and Cynthia Styles
Respondents
-and-
Canadian Union of Public Employees, Local 4400
Intervenor
INTERIM DECISION
Adjudicator: Eric Whist
Indexed as: Kolins v. Toronto District School Board
1This is an Application filed on August 31, 2010 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Application alleges discrimination in employment on the basis of family status. This Interim Decision deals with a request by the respondents that the Application be deferred pending the outcome of a related grievance, and that the personal respondents be removed as respondents. It also addresses a Request to Intervene by the applicant’s bargaining unit, the Canadian Union of Public Employees (“CUPE”) Local 4400 (the ‘Union”).
REQUEST TO DEFER
2As part of their Response to the Application, the respondents request that the Application be deferred on the basis that on July 9, 2010, the Union filed a grievance on the applicant’s behalf arising out of substantially the same facts as set out in the Application. According to the respondents, this grievance has not been resolved and will be heard by an arbitrator. I note that according to the Union (in its Request to Intervene), the grievance was proceeding to a Stage 2 meeting on November 25, 2010, and it might be referred to arbitration if not resolved.
3On March 2, 2011, the Tribunal wrote a letter to the applicant to indicate that the respondents were requesting a deferral and that her Reply to the Response must include her submissions on the deferral request. Enclosed with this letter was a copy of the Response.
4On March 15, 2011, the Applicant filed her Reply with the Tribunal with brief submissions on the issue of deferral. The applicant submits that deferral would be a slow and unjust way of proceeding with her Application, as she knows of other similar grievances in the past that have been unsuccessful. She submits that she is distrustful of the Union acting in her best interest and refers to her Response to the Union’s Request to Intervene in which she expressed, in more detail, concerns about her past experiences with the Union.
5The Tribunal may defer consideration of an application on such terms as it may determine, on its own initiative or at the request of any party (Rule 14.1 of the Tribunal’s Rules of Procedure). The purpose of deferring an application is to ensure that proceedings dealing with some or all of the same issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law. In each case, the Tribunal must consider, in light of the particular circumstances, whether deferral is the most fair, just and expeditious way of proceeding with the Application.
6I am satisfied, based on the information before me, that to continue with the Application at this time would be not be the most fair, just or expeditious way to proceed. It would be an inefficient and inappropriate use of the resources of the Tribunal.
7I find that the grievance filed by the Union substantially arises from the same facts alleged in the Application. I am satisfied that it has not been resolved and is likely proceeding to arbitration - there is nothing in the applicant’s Reply of March 14, 2011 to suggest otherwise. Arbitration takes place before a decision-maker with appropriate remedial authority. 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, as was affirmed by the Supreme Court of Canada. See Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42. Under these circumstances, I am satisfied that I should follow the Tribunal’s general practice and defer the Application given there is an ongoing grievance under a collective agreement based on the same facts and issues as raised in the Application.
8I make this decision mindful of the fact that the applicant raises issues about the support previously provided to her and others by the Union. While this may be a concern for the applicant, I am not satisfied that this warrants the Tribunal continuing with the Application and in so doing allow legal proceedings addressing the same issues to proceed concurrently thereby allowing for possible inconsistent findings on fact and law.
9The 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 grievance process has been concluded.
REQUEST TO INTERVENE
10The Union requests to intervene on the basis that, as the applicant’s bargaining agent, the Union has a genuine and substantial interest in matters raised in the Application. The Union indicates that it is committed to ensuring the applicant’s rights under the Code and the institutional respondent’s broader policy on accommodation based on family status and its impacts on other members of the bargaining unit. The Union indicates its interests in any possible settlement or remedies awarded by the Tribunal, and the impact that any outcome of the Tribunal’s process might have on the Collective Agreement. The Union also states that it can be a resource given some of the complicated issues raised by the Application.
11The applicant opposes the Union’s intervention. In her Response to the Request to Intervene, the applicant expresses concerns with how the Union has represented her and others in the past and that she does not want the Union to represent her.
12Given that I have determined that this matter is to be deferred in light of the ongoing grievance process, it may appear that there is no immediate need to rule on the Request to Intervene. However, I am of the view that a decision on the Union’s request is appropriate in the event that one or more of the parties seeks to have the Application brought back. In my view, the Union may wish to make submissions on such a request.
13The Request to Intervene is granted. A union almost always has an interest in a human rights application involving a member, and, unless there are exceptional circumstances, the Tribunal will grant the bargaining agent intervenor status when requested. I see no reason, in these circumstances, not to grant the CUPE Local 440’s Request to Intervene. The full extent of the intervenor’s participation in the Tribunal’s proceedings will be determined by the Tribunal at the appropriate time.
14The applicant appears to oppose the Request to Intervene on the basis of concerns over whether the Union will effectively represent her. I note that the Union’s stated interest in intervening is in order to address a range of issues and has not been characterized in terms of representing the applicant.
REQUEST TO REMOVE PERSONAL RESPONDENTS
15The respondents request as part of their Response that the three personal respondents be removed as respondents. I do not have before me the applicant’s position on this request, nor has the applicant been required, as part of the process to date, to provide her position. Under the circumstances, this request is deferred until such time as the Application may be brought back after the grievance process has been concluded. At that time the respondents may renew this request.
16I am not seized of this matter.
Dated at Toronto, this 22nd day of March, 2011.
”signed by”________
Eric Whist
Vice-chair