HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Carla Bedard
Applicant
-and-
Near North District School Board
Respondent
INTERIM DECISION
Adjudicator: Sherry Liang
Indexed as: Bedard v. Near North District School Board
1This is an Application filed on June 24, 2011 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. The applicant, who is a teacher represented in her workplace by the Ontario Secondary School Teachers’ Federation (the OSSTF), alleges that her employer has failed to provide her with necessary accommodation of a disability in the workplace.
2On December 8, 2011, the Tribunal issued a Notice of Mediation, setting February 8, 2012 as the date for mediation in this Application. Subsequently, the applicant advised that on December 10, 2011 the OSSTF filed a grievance on her behalf concerning the same issues.
3The Tribunal sought submissions from the parties on whether the Application should be deferred pending the completion of the grievance proceeding. The applicant did not filed submissions. The OSSTF and the respondent both submit that deferral is appropriate.
4The Tribunal may defer consideration of an application, on such terms as it may determine, and on its own initiative (Rule 14.1 of the Tribunal’s Rules of Procedure). The Tribunal has stated that 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. Absent good reason, applicants and respondents before the Tribunal are entitled to expect the Tribunal to take timely action to resolve complaints of discrimination brought before it.
5The 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 324, 2003 SCC 42).
6The 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.
7In this case, it is apparent that there is substantial overlap between the facts and human rights issues covered by the Application and those referred to in the grievance. The respondent employer and the union that has carriage of the grievance agree that the Application should be deferred. In these circumstances, I find that deferral of the Application is appropriate.
8The Application will therefore be deferred pending the completion of the grievance and arbitration proceeding. The mediation scheduled in this matter is cancelled.
9The Tribunal directs the parties’ attention to Rules 14.3 and 14.4 of the Tribunal’s Rules of Procedure which outline the procedure by which the Application may be brought back on after the conclusion of the other proceeding.
10I am not seized of this matter.
Dated at Toronto this 26th day of January, 2012.
“Signed by”
Sherry Liang
Vice-chair