Human Rights Tribunal of Ontario
Between:
Stephen Eveleigh Applicant
-and-
Waterloo Regional District School Board Respondent
Interim Decision
Adjudicator: Judith Keene Date: June 29, 2012 Citation: 2012 HRTO 1293 Indexed as: Eveleigh v. Waterloo Regional District School Board
Written Submissions
Stephen Eveleigh, Applicant Self-represented
Waterloo Regional District School Board, Respondent Ian S. Campbell, Counsel
Decision
1This is an Interim Decision in respect of an Application filed on March 29, 2012 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of disability. This Interim Decision deals with a request, filed as part of a Response to the Application seeking the early dismissal of the Application for various reasons. To summarize, the respondent has cited section 45.1 of the Code, as well as asserting that the applicant has failed to disclose a prima facie case of discrimination under the Code, that proceeding with the application would constitute an abuse of the Tribunal's process, and that “most” of the allegations are untimely or raise issues which are moot.
2The applicant has filed a reply. I have reviewed all materials filed to date.
3I am not convinced from the submissions of the respondent that mootness is an issue here, that the Application fails to disclose a prima facie case, or that s. 45.1 is engaged. There are allegations made in the Application that, if proved, may establish a violation of the Code. The “proceeding” relied on by the respondent in this case, a grievance process, appears to be ongoing, and has not been resolved with a decision. While there have been instances in which the Tribunal has concluded that the process of reaching the settlement of a grievance can be a “proceeding” for the purposes of s. 45.1, it appears that there have been no more than interim agreements in this case.
4On the submissions to date it is undisputed that the applicant filed a grievance on October 6, 2009, a copy of which has been sent to the Tribunal by the respondent in its Response. The grievance specifically cites the Code and indicates in paragraph 7 that accommodation of disabilities is an issue. The grievance was referred to arbitration. To date it appears that there have been two interim agreements in the course of the arbitration, but it appears that the arbitrator is still seized of the matter; there is no indication of a decision by the arbitrator or a withdrawal of the grievance.
5The Tribunal may defer consideration of an Application, on such terms as it may determine, and on its own initiative (Rule 14.1). 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.
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. 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 342, 2003 SCC 42).
7It appears from the submissions of the respondent that there has been considerable progress made in the arbitration; while the applicant disputes many of the respondent's submissions, his reply does not indicate anything to the contrary. In this case, it appears appropriate that the Application be deferred.
8The Tribunal directs the parties’ attention to Rules 14.3 and 14.4. These Rules outline the procedure by which the Application may be brought back before this Tribunal after the conclusion of the grievance process.
9As noted above, the respondent has raised issues of timeliness concerning many of the allegations that are the subject of this Application, as well as claiming abuse of process. These issues can be dealt with at a later date if the Application is brought back before this Tribunal.
Order
10The Application is deferred. The parties may apply to have it brought back before the Tribunal at the conclusion of the grievance process.
Dated at Toronto, this 29th day of June, 2012.
Signed by
Judith Keene Vice-chair