HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Luisa Smith
Applicant
-and-
Niagara Catholic District School Board, John Crocco, Frank Iannantuono, Kim Kuchar, Robert Ciario and Kathy Burtnik
Respondents
INTERIM DECISION
Adjudicator: Alan G. Smith
Indexed as: Smith v. Niagara Catholic District School Board
WRITTEN SUBMISSIONS
) Niagara Catholic District School Board, ) Steven F. Wilson, Counsel
Respondent )
INTRODUCTION
1This is an Application filed January 27, 2011, pursuant to section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, ( the “Code”).
2On March 22, 2011 the Registrar issued a Notice of Intent to Defer the Application pending the outcome of the ongoing workplace grievance-arbitration process undertaken by the applicant and the respondent School Board (Board). The Notice directed the applicant to provide written submissions on the deferral by April 21, 2011.
3The applicant did not provide submissions as directed and the time for doing so has now passed. The Board provided its submissions on deferral on April 13, 2011.
4Deferral of an application ensures that proceedings dealing with the same issues do not run concurrently, raising the possibility of inconsistent decisions on facts or law.
5While deferral is not automatic, it is granted to avoid adjudicative duplication. The Tribunal has held that some of the factors that may be relevant in deciding whether to defer consideration of an application 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. See Christianson v. College of Physicians and Surgeons, 2009 HRTO 438 at para. 10; Groves v. Ontario (Community Safety and Correctional Services), 2010 HRTO 1779.
DECISION
6The Tribunal has generally deferred applications where there is an ongoing grievance under a collective agreement based on the same facts and human rights issues. See Blackman v. Ontario (Community Safety and Correctional Services), 2009 HRTO 970 at para. 5. 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 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.
7A review of the grievance filed by the applicant and her union on September 9, 2010, reveals it is virtually identical to the subject matter of the Application. The Board advises that the grievance is scheduled for an arbitration hearing on June 27, 2011.
8In these circumstances, the Tribunal finds that the most fair, just and expeditious approach is to defer consideration of this Application pending the conclusion of the grievance arbitration process. The Tribunal directs the parties’ attention to Rules 14.3 and 14.4 which outline the process by which a party may request, in accordance to Rule 19, the Tribunal to proceed with an application after the conclusion of another process.
9I am not seized of this matter.
Dated at Toronto, this 3rd day of May, 2011.
“signed by”
Alan G. Smith
Member