Nieves v. Toronto District School Board, 2013 HRTO 452

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: Eric Whist

Date: March 18, 2013

Citation: 2013 HRTO 452

Indexed as: Nieves v. Toronto District School Board

WRITTEN SUBMISSIONS

Alfonso Nieves, Applicant

Self-represented

Toronto District School Board, Respondent

Grant Bowers, Counsel

INTRODUCTION

1This Interim Decision addresses the applicant’s request to reactivate his Application.

2In an Interim Decision dated May 12, 2012, 2012 HRTO 965 (the “Interim Decision”), the Tribunal granted the respondent’s request to defer the Application pending the outcome of three grievances scheduled for a hearing before an Arbitrator on June 14, 2012. The Tribunal was satisfied that there was substantial overlap between the facts and human rights issues referred to in the Application and in the grievances.

3The Tribunal indicated in its Interim Decision that if the applicant was of the view that at the conclusion of the grievance process his human rights issues had not been addressed he could ask to have his Application brought back before the Tribunal. The Interim Decision directed the parties’ attention to Rules 14.3 and 14.4 of the Tribunal’s Rules of Procedure which outline the procedure by which an Application may be reactivated following the conclusion of another proceeding.

4On February 8, 2013, the applicant filed a Request for an Order During Proceedings (Form 10) asking the Tribunal to reactivate his deferred Application. The applicant indicates that his grievances are still pending and that no hearing date before an Arbitrator has been set. He requests that the Tribunal proceed with his Application given the delays in having his grievances resolved.

5On March 1, 2013, the respondent filed a Response (Form 11) opposing the applicant’s request. The respondent submits that the grievance process has not as yet resolved the applicant’s three grievances and consequently it is premature for the applicant to request reactivation of his Application.

6The Intervenor, the Canadian Union of Public Employees, Local 4400, has not filed submissions in response to the applicant’s request to reactivate.

DECISION

7The Tribunal determined in its Interim Decision that the Application would be deferred pending the conclusion of applicant’s grievance process. The Tribunal directed the parties’ attention to Rules 14.3 and 14.4 which outline the procedure by which a party could request the Tribunal to proceed with an Application. Rule 14.4 of the Tribunal’s Rules of Procedure states:

14.4 Where an Application was deferred pending the outcome of another legal proceeding, a request to proceed under Rule 14.3 must be filed no later than 60 days after the conclusion of the other proceeding, must set out the date the other legal proceeding concluded and include a copy of the decision or order in the other proceeding, if any.

8Based on the parties’ submissions it is clear that the applicant’s grievance proceeding has not concluded and that the reason for the Applicant’s request to reactivate the Application is because of his concerns about delays in the grievance process.

9Although the Tribunal's usual practice is to reactive applications only upon the completion of the other legal process upon which the application was originally deferred there have been exceptions. The Tribunal determined in Muir v. Humber River Regional Hospital, 2012 HRTO 548, that an application could be reactivated when it was not evident that a grievance was still active, and determined in Chintaman v. Toronto District School Board, 2012 HRTO 1291, that an application could be reactivated when it was persuaded that the grievance had been adjourned sine die and was no longer active. The Tribunal noted in Melville v. Toronto (City), 2012 HRTO 22, that there may instances where it would be open to an applicant whose application had been deferred to file a Request for Order During Proceedings requesting reactivation on the basis that a grievance process has been unreasonably slow.

10I am not satisfied, based on the information before me, that I can find that the applicant’s grievance process is either effectively inactive or that the delays have been unreasonable. There is information before me from the applicant to suggest that while a hearing scheduled before an arbitrator scheduled for June 14, 2012 was adjourned, there has been further activity in relation to his grievances. The applicant refers in correspondence to the Tribunal from August 2012 to an arbitration hearing being held that addresses one of his three grievances, and to a further arbitration hearing being held only to be adjourned owing to his doctor not appearing.

11While there may have been some delays in the applicant’s grievance process there is insufficient information before me to suggest that these delays have been undue or that proceeding with the Application at this time would not lead to concurrent hearings dealing with the same facts and issues and thereby raising the possibility of inconsistent decisions on facts or law.

12It remains open to the parties to file a Request for an Order during Proceedings with particulars to request reactivation of the Application, pursuant to Rules 14.3 and 14.4 of the Tribunal’s Rules of Procedure or on the basis of an unreasonable delay in the grievance procedure.

13I am not seized of this matter.