Vigars v. Thames Valley District School Board, 2012 HRTO 2353

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Robert Paul Vigars Applicant

-and-

Thames Valley District School Board Respondent

-and-

Elementary Teachers’ Federation of Ontario Intervenor

INTERIM DECISION

Adjudicator: Maureen Doyle Date: December 14, 2012 Citation: 2012 HRTO 2353 Indexed as: Vigars v. Thames Valley District School Board

WRITTEN SUBMISSIONS

Robert Paul Vigars, Applicant ) No submissions Thames Valley District School Board, ) Peter J. Thorup, Counsel Respondent ) Elementary Teachers’ Federation of ) No submissions Ontario, Intervenor )

Introduction

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”). This Interim Decision deals with the issue of whether the Application should be deferred pending the completion of a related grievance proceeding.

2A Summary Hearing was held in this matter and resulted in an Interim Decision, Vigars v. Thames Valley District School Board, 2012 HRTO 1976, dismissing part of the Application. The Interim Decision also noted that the Intervenor Union had filed a grievance relating to accommodation of the applicant’s disability. The Interim Decision directed the union to provide a copy of the grievance with respect to accommodation which it had filed on behalf of the applicant and directed the parties to make submissions regarding the deferral of the Application pending completion of the grievance process.

3The respondent employer provided a copy of the grievance and submitted that it is appropriate to defer this Application until completion of the grievance process. It submitted that as the Interim Decision in this Application narrowed the issue before the Tribunal to whether the respondent employer had failed to accommodate him on his return from sick leave in 2010, and as the grievance filed by the Intervenor Union alleges that the respondent employer “failed to accommodate” the applicant and remedies sought therein include accommodation at work in addition to restoration of “any lost sick days” and “unspecified damages”, it is appropriate for the Tribunal to defer this Application “in order to preclude the possibility of inconsistent decisions on fact or law”. It advises that the grievance is currently scheduled for a hearing before an arbitrator in January, 2013.

4Following the Interim Decision, the Intervenor Union did not supply a copy of the grievance, nor did it make any written submissions regarding deferral. The time for doing so has now passed.

5Following the Interim Decision, the applicant did not make written submissions regarding deferral and the time for doing so has now passed.

6The 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. 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.

7The 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).

8The 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.

9In 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. There are no arguments before me which would justify a departure from the Tribunal’s normal approach. The matter is still live and the grievance process has not concluded. But if the applicant believes, on conclusion of the grievance process, that his human rights issues have not been adequately addressed, he may ask to have his Application brought back on before the Tribunal.

10The Application will therefore be deferred pending the completion of the grievance process.

11The 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.

12I am not seized.