Volante v. Thames Valley District School Board, 2013 HRTO 1618

Human Rights Tribunal of Ontario

B E T W E E N:

Patrick Volante Applicant

-and-

Thames Valley District School Board Respondent

INTERIM DECISION

Adjudicator: Daniel Randazzo Date: September 26, 2013 Citation: 2013 HRTO 1618 Indexed as: Volante v. Thames Valley District School Board

WRITTEN SUBMISSIONS

Patrick Volante, Applicant ) Self-represented

Thames Valley District ) Peter J. Thorup, Counsel School Board, Respondent )

1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, CH.19 as amended (the “Code”), alleging discrimination with respect to employment because of age. This decision addresses the applicant’s request to defer the hearing of this Application pending the determination of a grievance arbitration between Ontario English Catholic Teachers Association (“OECTA”) and Dufferin-Peel Catholic District School Board (“the Dufferin-Peel arbitration”).

2The applicant requests that the hearing of this matter be deferred to a date following the Dufferin-Peel arbitration, which is scheduled to be heard on January 21, February 25, and April 1 and 2, 2014. The applicant states that his Application against the Thames Valley District School Board will be supported by the findings in the Dufferin-Peel arbitration which, in the opinion of the applicant, will clearly demonstrate a pattern of ageism currently practiced by school boards in their hiring practices.

3The respondent opposes the request to defer the hearing of this Application on the basis that it is not a party to the Dufferin-Peel arbitration; the respondent has no knowledge of the grievance or future arbitration hearings being pursued by the applicant’s union; the proceedings between Dufferin-Peel Catholic School Board and OECTA have no connection to the respondent and the respondent has no role in the Dufferin-Peel arbitration. Furthermore, the respondents rely on the belief that their representatives have been inconvenienced enough and the request to defer is untimely.

4The Tribunal may defer consideration of an application, on such terms as it may determine, on its own initiative or at the request of any party (Rule 14.1). Deferral of an application ensures that proceedings dealing with the same issues do not run concurrently.

5Some 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. See Baghdasserians v. 674469 Ontario, 2008 HRTO 404.

6The Tribunal generally defers applications where the parties are already engaged in a concurrent legal proceeding, particularly when the other proceeding is an on-going grievance under a collective agreement based on the same facts and issues as raised in the Application. In so doing, the Tribunal has relied on Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42, where the Supreme Court of Canada confirmed 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.

7With respect to the applicant’s request to defer the hearing of these applications, it is not clear from the material filed or the applicant’s submissions that the subject matter of the Dufferin-Peel arbitration overlap with the subject matter of the Application. The applicant has not provided a copy of the grievance or particulars of the allegations that gave rise to the grievance.

8More importantly, even if I were to find that there was an overlap between the subject matter of the Dufferin-Peel arbitration and the subject matter of the Application, the applicant’s request to defer would fail on the basis that there are not two concurrent proceedings between the parties. The Dufferin-Peel arbitration is between OECTA and the Dufferin-Peel Catholic School Board. The Thames Valley District School Board is not a party to this proceeding, nor does it have any status in the grievance arbitration between the applicant’s union and Dufferin-Peel Catholic School Board. The Thames Valley District School Board and the Dufferin-Peel Catholic School Board are separate and distinct school boards. .

9The applicant states that he will seek to rely on the findings in the Dufferin-Peel arbitration to support his allegations of discriminatory practice against the respondent. I do not accept this as a proper reason to defer this Application. Any findings against the Dufferin-Peel Catholic School Board will be just that – findings against the Dufferin-Peel Catholic School Board. It bears repeating that the Thames Valley District School Board is not a party to applicant’s grievance arbitration.

10In deciding to defer an Application the Tribunal will look to the remedies available in the other proceeding. The respondent is not a party to the grievance arbitration and as such, there is no remedy that can be found or imposed upon the respondent should there be a finding of discrimination in the arbitration proceeding.

11Finally, I note that, given my reasons stated above, I do not have to address the timeliness of the applicant’s request and further note the inconvenience of the respondent is not a matter which I have considered in dismissing the applicant’s request to defer.

ORDER

12For the reasons stated above, the applicant’s request to defer the Application is denied.

13This matter will proceed as scheduled on October 17 and 18, 2013 in London, Ontario.