Marilyn O’Brien v. Halton Catholic District School Board, 2013 HRTO 1226

Human Rights Tribunal of Ontario

B E T W E E N:

Marilyn O’Brien Applicant

-and-

Halton Catholic District School Board, CUPE Local 3166 and CUPE Local 5200 Respondents

INTERIM DECISION

Adjudicator: Brian Cook Date: July 12, 2013 Citation: 2013 HRTO 1226 Indexed as: O’Brien v. Halton Catholic District School Board

APPEARANCES

Marilyn O’Brien, Applicant Wade Poziomka, Counsel

CUPE Local 3166 and CUPE Local 5200, Respondents Elizabeth Nurse, Counsel

Halton Catholic District School Board, Respondent Brenda Bowlby, Counsel

Introduction

1This Interim Decision follows a summary hearing held on June 27, 2013 by telephone conference call hearing. At the summary hearing the issue was whether the Application should be dismissed as having no reasonable prospect of success as against one or both of two CUPE locals. The Tribunal directed the summary hearing in respect of the Application as against the CUPE locals on its own motion, and before the CUPE Locals were required to file a Response to the Application.

2After the Application was filed, the applicant's employment was terminated by the respondent school board. At the summary hearing, it was clarified that a grievance has been filed in respect of the termination. The parties have selected an Arbitrator although the parties to the summary hearing were not sure if dates have been set.

3All three parties agreed that the Application should be deferred in accordance with the Tribunal’s usual practice when there is an ongoing grievance proceeding arising out of the same facts and history as those that gave rise to the Application. However, counsel for CUPE asked that the Application as against both CUPE locals be dismissed as having no reasonable prospect of success and that this be done before the Application is deferred. Ms. Nurse clarified that on the basis of the submissions and allegations, it is clear that the Application as against Local 5100 should be dismissed as having no reasonable prospect of success. She proposed that the summary hearing be adjourned to reconvene in the near future to allow her to better respond to submissions from the applicant's counsel sent only on the evening before the summary hearing.

4The applicant's counsel agreed that the Application should be deferred, but submitted that the Tribunal should not dismiss against either CUPE Local at this time. Mr. Poziomka submitted that at the least, the Application should not be dismissed until the union local respondents have filed a Response to the Application.

CONCLUSIONS

5In my view, the appropriate action at this time is to defer all further consideration of the Application pending the resolution of the grievance proceeding.

6The factors that have been identified as relevant in deciding whether to defer consideration of an application before the Tribunal are the subject matter of the other proceeding, the nature of the other proceeding, the types 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.

7As noted by all the parties, the Tribunal’s usual practice is to defer consideration of an Application when there is an ongoing grievance proceeding. Reasons for this include the fact that an Arbitrator has full jurisdiction to consider and apply the Code. As well, it is appropriate to conserve the resources of the parties and the Tribunal in processing an Application that may never proceed. Or, if it does eventually proceed, there is a high probability that the issues and history will have become clearer, allowing the parties and the Tribunal to better deal with any unresolved issues relating to the Application that may remain.

8In this case, in my view, the issue of whether there is no reasonable prospect of success as against either or both CUPE Local can be better assessed at such time as the grievance proceeding is concluded.

ORDER

9The Application is deferred pending the resolution of the grievance procedure currently underway. If at the conclusion of that proceeding the applicant believes that there are issues relating to the Application that have not been dealt with, she may apply to have the Application re-activated. In that event, the issue of whether the Application can proceed against either or both of the Union Locals can be assessed.

10Rules 14.3 and 14.4 of the Tribunal’s Rules of Procedure outline the process by which the Application may be brought back on after the grievance procedure has been concluded.