Neal v. Kawartha Pine Ridge District School Board, 2012 HRTO 2087

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Leo Neal

Applicant

-and-

Kawartha Pine Ridge District School Board

Respondent

-and-

Canadian Union of Public Employees, Local 5555

Intervenor

Interim Decision

Adjudicator: Ena Chadha

Date: November 1, 2012

Citation: 2012 HRTO 2087

Indexed as: Neal v. Kawartha Pine Ridge District School Board

WRITTEN SUBMISSIONS

Leo Neal, Applicant

Self-represented

Kawartha Pine Ridge District School Board, Respondent

Colin Youngman, Counsel

Canadian Union of Public Employees, Local 555, Intevenor

Gavin Leeb, Counsel

1This Application was filed on August 8, 2012, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (“Code”), alleging discrimination and reprisal with respect to employment on the basis of disability.

2The applicant’s narrative alleges that he was subject to unfair discipline regarding three events in 2011 and that he remains suspended from work. The applicant believes that the respondent has failed to understand his disability and unfairly disciplined him.

3On September 14, 2012, the applicant’s union filed a request to intervene in this Application. The union submits that it represents the applicant in the circumstances giving rise to this matter.

4The respondent filed a Response on October 4, 2012, denying the allegations and also filed submissions supporting the union’s request to intervene. In its Response, the respondent requests that the Tribunal defer the Application pending the completion of a grievance that the applicant filed regarding the events alleged in the Application. The respondents provided a copy of a grievance dated September 18, 2012.

5The applicant filed a Reply on October 22, 2012. The applicant states that he does not object to deferral until the conclusion of the grievance and arbitration procedures. The applicant notes that subsequent to filing to the Application his employment was allegedly terminated and the dismissal was “overturned in a grievance”. The applicant did not make submissions regarding the union’s request to intervene.

Intervention

6Rule 11.1 of the Tribunal’s Rules of Procedure (“Rules”) provides that:

The Tribunal may allow a person or organization to intervene in any case at any time on such terms as the Tribunal may determine. The Tribunal will determine the extent to which an intervenor will be permitted to participate in a proceeding.

7The Tribunal in Boyce v. Toronto Community Housing Corporation, 2009 HRTO 131, at para. 13, has stated:

A union or association nearly always has an interest in a human rights application brought by an employee in a bargaining unit it represents when the application alleges discrimination in employment. Absent exceptional circumstances, the applicant’s bargaining agent will be granted intervention status in Tribunal proceedings where it requests it.

8The applicant is an employee represented by a bargaining agent. I see no reason to depart from the Tribunal’s established practice as stated in Boyce, above, to grant intervenor status when an applicant is a member of a bargaining unit represented by the union.

Deferral

9The 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.

10Some 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.

11The 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.

12Although the copy of the grievance provided by the respondent is dated September 18, 2012, the grievance notes the “date of the complaint” is October 28, 2011. The grievance describes the matter as “discipline”, stating that the respondent violated the collective agreement by “discriminating against the grievor, by not allowing him to work when work was available”.

13While it appears this grievance was commenced after the Application, based on the content of the grievance form it appears that its concerns relate to the alleged incidents of discipline in 2011. Both parties agree with deferral. As such, I see no basis to depart from the Tribunal’s regular approach to defer an Application where the Application overlaps with an active grievance.

14Accordingly, this Application will be deferred pending the conclusion of the grievance process

ORDERS

15The Tribunal orders as follows:

i. The union is granted intervenor status and the style of cause is amended accordingly; and

ii. The Application is deferred pending the conclusion of the grievance process.

16Where 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).

17I am not seized of this matter.