HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Rosalie Griffith
Applicant
-and-
Toronto District School Board and Patrick Knight
Respondents
INTERIM DECISION
Adjudicator: David Muir
Indexed as: Griffith v. Toronto District School Board
WRITTEN SUBMISSIONS
Rosalie Griffith, Applicant
Self-represented
Toronto District School Board, Respondent
Grant Bowers, Counsel
Patrick Knight, Respondent
Sarah Colman, Counsel
1This is an Application filed 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 sex and reprisal.
2In its Response (Form 2) the Toronto District School Board argues that this Application should be deferred pending the resolution of five grievances filed by or on behalf of the applicant which cover substantially all of the issues raised in this Application. The applicant has responded to the request in her Reply (Form 3).
3The applicant argues that it would not be appropriate to defer this Application because the grievances are between her statutory bargaining agent, the affected party Ontario Secondary School Teachers’ Federation, District 12, and the respondent employer. In contrast the applicant argues that this case is between her and both the two respondents above, the respondent employer and the individual respondent. The applicant argues that this case raises issue of personal liability which are properly before the Tribunal and which are beyond the jurisdiction of the Tribunal.
4The Tribunal may defer consideration of an application, on such terms as it may determine, and on its own initiative (Rule 14.1). 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.
5However, the Tribunal has generally deferred applications where there is an ongoing grievance under a collective agreement based on the same facts and 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. Indeed the applicant does not dispute this, but argues that the potential for a remedial order against an individual respondent takes this case outside of the general approach. Whether or not the applicant’s claim that a labour arbitrator may not be able to award a remedy against an individual respondent is accurate, that is an insufficient reason to require the parties to participate in multiple concurrent proceedings dealing with the same underlying issues. The Application will therefore be deferred pending the completion of the grievance process.
8The Tribunal directs the parties’ attention to Rules 14.3 and 14.4 which outline the procedure by which the Application may be brought back on after the conclusion of the grievance process.
Dated at Toronto, this 30th day of November, 2012.
“Signed by”
David Muir
Vice-chair