Beres v. Toronto District School Board, 2012 HRTO 1888

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Mariusz Beres Applicant

-and-

Toronto District School Board and Anthony Vandyke Respondents

INTERIM DECISION

Adjudicator: Ena Chadha Date: October 4, 2012 Citation: 2012 HRTO 1888 Indexed as: Beres v. Toronto District School Board

WRITTEN SUBMISSIONS

Toronto District School Board and Anthony Vandyke, Respondents

Grant Bowers, Counsel

1This Application was filed on July 30, 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 on the ground of disability. In the Application, the applicant noted that he had a previous workplace grievance and that an existing grievance regarding the facts that are alleged in the Application.

2On August 21, 2012, the Tribunal issued a Notice of Intent to Defer (“NOID”) on the basis that it may be appropriate for the Tribunal to defer the Application pending the conclusion of the applicant’s grievance. The NOID invited the parties and the applicant’s union, as the affected party, to file submissions in response to the NOID.

3The respondents filed submissions in response to the Tribunal’s NOID. The respondents note that the applicant filed an earlier grievance in September 2010, which was resolved by the respondent and the applicant’s union in February 2011. The respondents submit that any allegations that relate to the matters addressed and resolved in the applicant’s previous grievance is subject to the ‘appropriately dealt with’ provisions of section 45.1 of the Code and out of time pursuant to 34(1) of the Code. The respondents submit that the applicant launched another grievance on April 24, 2012 which remains outstanding. The respondents provided copies of the applicant’s grievances and the terms of the 2011 settlement.

4Neither the applicant nor the applicant’s union filed submissions with respect to whether or not the Application should be deferred pending the completion of the grievance process.

Deferral

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). Deferral of an application ensures that proceedings dealing with the same issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law.

6Some factors that have been identified as 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 types 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 Baghdasserians v. 674469 Ontario, 2008 HRTO 404.

7Both of the applicant’s grievances were launched prior to the Application. Having reviewed the Application, the respondents’ submissions and the documentary materials, I conclude that there is significant overlap in the subject matter of the Application and the applicant’s outstanding grievance. The applicant’s narrative clearly indicates that there are related issues with respect to his medical restrictions and accommodation in the current grievance and this Application.

8The Tribunal generally defers applications where the parties are already engaged in a concurrent legal proceeding, particularly when the other proceeding is an on-going grievance under a collective agreement based on the same facts and issues as raised in the Application. In so doing, the Tribunal has relied on Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42, wherein the Supreme Court of Canada confirmed 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. I see no reason to depart from this approach.

9As such, the most fair, just and expeditious approach is to defer consideration of this Application pending the completion of the grievance process.

Order

10The Application is deferred until the completion of the grievance process.

11Where a party wishes to proceed with an application which has been deferred, the party must make a Request for an Order During Proceedings in accordance with Rule 19 within 60 days after the conclusion of the other proceeding (Rules 14.3 and 14.4).

12Given the decision to defer this Application, the respondents’ requests to dismiss for delay and pursuant to section 45.1 of the Code can be dealt with if and when the Application is reactivated.

13I am not seized