Eccleston v. Toronto District School Board, 2012 HRTO 989

Human Rights Tribunal of Ontario

Between:

Cherline Eccleston Applicant

-and-

Toronto District School Board Respondent

Interim Decision

Adjudicator: Keith Brennenstuhl Decision Date: May 17, 2012 Citation: 2012 HRTO 989 Indexed as: Eccleston v. Toronto District School Board

Written Submissions

Cherline Eccleston, Applicant Self-represented

Toronto District School Board, Respondent Wendy Lopez, 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 in employment on the basis of disability.

2On April 23, 2012 the Respondent filed with the Tribunal a Request for an Order During Proceedings (“RFODP”) requesting that the Application be deferred pending the completion of the grievance proceeding. The respondent indicates in the RFODP that the facts of the Application are part of a union proceeding that is in progress. A copy of the grievance filed on the applicant’s behalf by the union, the Ontario Secondary School Teachers’ Federation – Professional Student Services Personnel Unit, District 12, was attached to the RFODP.

3In her response to the RFODP, the applicant provides no reasons for the Tribunal to deny the RFODP other than she wants the Application to proceed.

4The Tribunal may defer consideration of an application, on such terms as it may determine. (Rule 14.1). The Tribunal has generally deferred applications where there is an ongoing grievance under a collective agreement based on the same facts and human rights issues. The Tribunal, in explaining this approach has referred to the fact that the Supreme Court of Canada has indicated that grievance arbitrators have not only the power but also the responsibility to implement and enforce the substantive rights and obligations of human rights statutes as if they were part of the collective agreement. See Parry Sound (District) School Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42.

5Thus, the Supreme Court has confirmed that human rights tribunals are not the only decision makers that can decide human rights issues. As noted in McIvor v. Xstrata Nickel, 2010 HRTO 2099 at para. 5:

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.

6In the present case it is apparent that the grievance addresses precisely the same issues raised in the Application. In view of all of these factors, the Application will be deferred pending the completion of the grievance process. The Registrar shall cancel the mediation scheduled for May 31, 2012.

7The parties’ attention is directed 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 procedure.

8I am not seized.