David Brooks v. Ottawa-Carleton District School Board, 2012 HRTO 612

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

David Brooks

Applicant

-and-

Ottawa-Carleton District School Board

Respondent

INTERIM DECISION

Adjudicator: Alan G. Smith

Date: March 23, 2012

Citation: 2012 HRTO 612

Indexed as: Brooks v. Ottawa-Carleton District School Board

WRITTEN SUBMISSIONS:

David Brooks, Applicant ) Self represented

Ottawa-Carelton District ) Roger R. Mills, Counsel

School Board, Respondent )

INTRODUCTION

1This is an Application filed February 6, 2012, pursuant to section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”) alleging discrimination in employment because of disability.

2The Tribunal sent the parties a Notice of Intent to Defer (NOID) on February 14, 2012. The NOID was also sent to the applicant’s bargaining agent, the Ontario Secondary School Teachers’ Federation (OSSTF). The NOID requested submissions from the parties and the OSSTF with regard to the deferral of the Application pending the conclusion of an ongoing workplace grievance-arbitration process that had begun in August 2010. The deadline for submissions was March 16, 2012.

3The OSSTF did not respond to the NOID and the deadline for submissions has now passed.

4The respondent filed submissions in support of deferral on March 9, 2012. The respondent advises:

…the grievance has been filed to arbitration and the parties are currently in the process of arranging for a mutually agreeable arbitrator to hear the case…

…the grievance…raises the same issues and involves substantially the same facts and allegations as those set out in the Application…

5The applicant opposes deferral essentially because of the delay in resolving his grievance. He also argues:

…the prior filed grievance or any other new associated grievance…would not address the underlying issue of this harassment dating back to Oct 2006 and the reprisal from my common law partners sexual harassment complaint…

ANALYSIS

6Deferral of an application ensures that proceedings dealing with the same issues do not run concurrently, raising the possibility of inconsistent decisions on facts or law. While deferral is not automatic, it can be granted to avoid adjudicative duplication. The Tribunal has held that some of the factors that may be relevant in deciding whether to defer consideration of an application include; the subject matter of the other proceeding, the nature of the other proceeding, the type 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, Christianson v. College of Physicians and Surgeons, 2009 HRTO 438, and Groves v. Ontario (Community Safety and Correctional Services), 2010 HRTO 1779.

7The Tribunal has deferred applications where there is an ongoing grievance under a collective agreement based on the same facts and human rights issues. See, Blackman v. Ontario (Minister of Community Safety and Correctional Services), 2009 HRTO 970. In explaining these decisions, 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 a part of the collective agreement. See, Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42 and O’Brien v. Burlington (City), 2009 HRTO 1818.

8I understand that the applicant is concerned about the fact that an arbitration hearing has not yet been scheduled, however, the length of time for an arbitration process is not a sufficient reason to refuse to defer the Application given the possibility of concurrent proceedings and inconsistent findings of fact and law. See Law v. Organizational Solution, 2010 HRTO 1158, and Lundy v. St. Joseph’s Health Care, 2010 HRTO 623.

9I find it appropriate to defer this Application pending the completion of the grievance process. The key issue at the heart of that grievance, the allegation that the respondent employer refused to promote the applicant due to his disability, is also the key issue covered by this Application. There may be issues raised by the Application that go beyond those that will be litigated before the arbitrator. However, given the considerable factual overlap between the two proceedings, the potential for the arbitration to determine some of the issues in this Application, and given the rational and orderly litigation of the various issues between this applicant and his employer I find that the circumstances of this case favour deferral. See O’Brien above, and Gordon v. Leisureworld Caregiving Centre, 2011 HRTO 577.

ORDER

10Therefore, the Tribunal finds that the most fair, just and expeditious approach is to defer consideration of this Application pending the conclusion of the grievance arbitration process. The Tribunal directs the parties’ attention to Rules 14.3 and 14.4 which outline the process by which a party may request, in accordance to Rule 19, the Tribunal to proceed with an application after the conclusion of another process.

11I am not seized of this matter.