MacDonald-Matic v. Niagara Catholic District School Board, 2013 HRTO 2064

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Frances MacDonald-Matic Applicant

-and-

Niagara Catholic District School Board Respondent

-and-

Ontario English Catholic Teachers’ Association Intervenor

Interim Decision

Adjudicator: Ena Chadha Date: December 13, 2013 Citation: 2013 HRTO 2064 Indexed as: MacDonald-Matic v. Niagara Catholic District School Board

WRITTEN SUBMISSIONS

Frances MacDonald-Matic, Applicant Jerry Raso, Counsel

Niagara Catholic District School Board, Respondent Steven F. Wilson, Counsel

Ontario English Catholic Teachers’ Association, Intervenor Jerry Raso, Counsel

1The applicant filed this Application under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (“Code”), on October 17, 2013, alleging discrimination with respect to employment and membership in a vocational association on the basis of disability.

2The applicant was a teacher with the respondent Niagara Catholic District School Board (“School Board”). The applicant’s employment was terminated on September 19, 2013. The applicant alleges that the respondent School Board discriminated against her in recommending to the Ontario College of Teachers that the applicant’s teaching certificate be revoked. The applicant asserts that the loss of her professional certificate interferes with her ability to obtain employment as a teacher with any school board in the province.

3In the Application narrative, the applicant noted that a workplace grievance was commenced by her bargaining agent, Ontario English Catholic Teachers’ Federation (“OECTA”) in relation to the termination of her employment. The applicant provided a copy of the grievance dated September 23, 2013. In summary, the grievance details the applicant’s claims as unjust dismissal; denial of sick leave; disability discrimination and failure to accommodate under the Code; denial of the applicant’s right to remain silent before the courts; and harassment because of the respondent’s continued requests for disclosure.

4On October 30, 2013, the Tribunal issued a Notice of Intent to Defer (“NOID”). The Tribunal invited the parties and OECTA, as an affected party, to file written submissions with respect to the issue of deferral.

5On November 19, 2013, the respondent wrote to the Tribunal confirming that it agrees that the Application should be deferred pending the resolution by the board of arbitration. The respondent also indicated that it will submit the Application to the board of arbitration for full and final disposition of the matter.

6On November 28, 2013, OECTA filed a request to intervene indicating that it seeks to intervene on the basis that it represents the applicant as her bargaining agent and the grievance which it filed on behalf of the applicant is the subject of the Tribunal’s NOID. OECTA states that it opposes deferral because there is no danger of conflicting findings of facts. OECTA contends the grievance concerns allegations with respect to the termination of the applicant’s employment, including a failure to provide accommodation; however, the Application only concerns the matter of the respondent’s recommendation to the Ontario College of Teachers.

7On November 29, 2013, the applicant filed submissions opposing deferral on the basis of arguments similar to those made by OECTA.

8The respondent filed further submissions on December 6, 2013. The respondent maintains that the Application should be deferred to the arbitration and indicates that the respondent and OECTA have agreed to a choice of arbitrator. The respondent points out that OECTA has carriage of the grievance at the arbitration and that counsel for OECTA represents both the applicant and OECTA before the Tribunal. The respondent submits the requested intervention is unnecessary if the matter is dealt in its entirety by the board of arbitration.

INTERVENTION

9Rule 11.1 of the Tribunal’s Rules of Procedure (“Rules”) provides that:

The Tribunal may allow a person or organization to intervene in any case at any time on such terms as the Tribunal may determine. The Tribunal will determine the extent to which an intervenor will be permitted to participate in a proceeding.

10The Tribunal in Boyce v. Toronto Community Housing Corporation, 2009 HRTO 131 at para. 13, has stated:

A union or association nearly always has an interest in a human rights application brought by an employee in a bargaining unit it represents when the application alleges discrimination in employment. Absent exceptional circumstances, the applicant’s bargaining agent will be granted intervention status in Tribunal proceedings where it requests it.

11The applicant is represented by OECTA as her bargaining agent and OECTA has carriage of the applicant’s grievance. I see no reason to depart from the Tribunal’s established practice as stated in Boyce, above, to grant intervenor status when the applicant is a member of a bargaining unit represented by the union, particularly in the circumstances of this case where there appears to be an outstanding grievance proceeding to arbitration.

DEFERRAL

12The 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.

13Some 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.

14The 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, wherein 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.

15The applicant’s grievance was filed prior to this Application. The parties to the grievance appear to have agreed to arbitration. The applicant’s grievance deals with her concerns regarding the discriminatory termination of her employment and the respondent’s alleged failure to accommodate her disability.

16It is apparent that the issues raised in the grievance overlap with the concerns alleged in the Application. While the applicant’s narrative indicates the Application only deals with the single issue of the respondent’s recommendation to the Ontario College of Teachers, it appears the applicant’s allegations regarding the employer’s handling of her termination and accommodation needs as alleged in the grievance underlie the circumstances detailed in the Application.

17As such, I see no basis to depart from the Tribunal’s regular approach to defer an Application where the Application overlaps with an outstanding grievance.

18Accordingly, this Application will be deferred pending the conclusion of the grievance/arbitration process.

ORDERS

19The Tribunal orders as follows:

i. OECTA is granted intervenor status and the style of cause is amended accordingly; and

ii. The Application is deferred pending the conclusion of the grievance/arbitration process.

20Where a party wishes to proceed with an application which has been deferred, the party must make a Request for an Order During Proceedings in accordance with Rule 19 within 60 days after the conclusion of the other proceeding (Rules 14.3 and 14.4).

21I am not seized of this matter.