Alfonso Nieves v. Toronto District School Board, 2012 HRTO 965

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Alfonso Nieves

Applicant

-and-

Toronto District School Board

Respondent

-and-

Canadian Union of Public Employees, Local 4400

Intervenor

INTERIM DECISION

Adjudicator: Jay Sengupta

Date: May 11, 2012

Citation: 2012 HRTO 965

Indexed as: Nieves v. Toronto District School Board

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”). The hearing into this matter is scheduled to be held on May 17 and 18, 2012. This Interim Decision deals with two Requests for Order (RFOPs) filed by the parties.

2The respondent has requested deferral of the hearing pending a hearing into three related grievances before an Arbitrator scheduled to take place on June 14, 2012. The intervenor union supports the request for deferral and the applicant opposes it.

3The applicant has filed an RFOP requesting that he be permitted to call two additional witnesses. No responses to this Request have yet been received from the respondent or the intervenor.

Deferral

4The applicant indicated in the Application that the facts of the Application were part of three union grievance proceedings that were still in progress and that the subject matter of the grievances was substantially the same as that of the Application. In its Response, the respondent noted the existence not only of the three grievances but also a complaint to the OLRB alleging a violation of the Occupational Health and Safety Act (OHSA) and sought deferral until all matters had been dealt with. The intervenor union supported the request to defer.

5In an earlier Interim Decision, the Tribunal refused the deferral request as there was insufficient information about the progress of the grievances and a consequent unlikelihood of duplication of proceedings (see 2011 HRTO 1372). In that Interim Decision the Tribunal noted the following:

It is open to any party to repeat a request for deferral if a hearing date is set for an arbitration that is likely to consider substantially the same facts and issues.

6The Form 10 filed by the respondent indicates that a date has been set for the parties to appear before Arbitrator Barry Stephens on June 14, 2012 to deal with all three grievances.

7The intervenor union has filed a Form 11 confirming that the three outstanding grievances have been consolidated and will be heard by Arbitrator Stephens on the date indicated. The intervenor further indicates that the grievances deal with alleged breaches not only of the Code, but also provisions of the Collective Agreement and the OHSA.

8The applicant opposes the request to defer, indicates that he has just heard that the matters are proceeding to arbitration and that he wishes to have his human rights Application adjudicated as scheduled.

9The 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.

10The 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).

11The 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.

12In 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 grievances. In addition, the scope of the grievances appears to be broader than that of the human rights Application. Refusing the deferral request and proceeding with the scheduled hearing may have the unintended consequence of delaying resolution of the other issues raised by the applicant’s union in the grievance proceedings.

13There is an arbitration date set for next month. If the applicant believes, on conclusion of that process, that his human rights issues have not been addressed, he may ask to have his Application brought back on before the Tribunal.

14The Application will therefore be deferred pending the completion of the grievance processes involving the three outstanding grievances. The hearing dates presently scheduled are adjourned.

15The 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 consolidated grievance process.

Request to Add Witnesses

16The applicant’s request to add to his list of witnesses is granted. If the matter is brought back and proceeds to hearing, the applicant will be permitted to call the proposed witnesses to give evidence before the Tribunal, as requested.