Hicks v. Hamilton Wentworth Catholic District School Board, 2013 HRTO 594

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Darrell Hicks

Applicant

-and-

Hamilton Wentworth Catholic District School Board

Respondent

-and-

OECTA (Ontario English Catholic Teachers Association)

Intervenor

INTERIM DECISION

Adjudicator: Judith Keene Date: April 10, 2013 Citation: 2013 HRTO 594 Indexed as: Hicks v. Hamilton Wentworth Catholic District School Board

APPEARANCES

Darrell Hicks, Applicant Self-represented

Hamilton Wentworth Catholic District School Board, Respondent Margot Blight, Counsel

OECTA (Ontario English Catholic Teachers Association), Respondent Jerry Raso, Counsel

Introduction

1This is an Interim Decision in respect of an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of disability. This Interim Decision deals with a request for particulars and to amend an Application, a request by a union to intervene and a request to defer.

Request for particulars

2The applicant has requested particulars related to allegations in the Response. I am of the view that the Response is sufficiently clear and detailed that no further particulars are required at this stage. If the Application progresses toward a hearing before the Tribunal, there are requirements for considerable disclosure; these include the requirement for both parties to disclose all arguably relevant documents.

3In view of the fact that the applicant has raised privacy concerns relating to his medical records, both parties are referred to the Tribunal’s Rules of Procedure, available on the Tribunal’s website, and in particular to Rules 3.3, 16 and 17.

Request to amend

4On March 1, 2013, the applicant filed a Request for an Order During Proceedings (“Request”) with a view to amending his Application to add a claim for monetary compensation related to a denial of short term disability benefits.

5The respondent has not responded to the Request and the time for doing so has elapsed.

6The applicant’s request to amend is granted.

Request to intervene

7A Request to Intervene (“Request”) filed by the Ontario English Catholic Teachers Association (“OECTA”) on February 11, 2013. OECTA is the collective bargaining agent for the applicant. OECTA states that it has “relevant information pertaining to the merits of this matter” and also indicates that any remedy granted by the tribunal may have an impact on OECTA and its members employed by the respondent school Board.

8The applicant objects to the inclusion of OECTA as an intervenor. He indicates that OECTA failed to assist him with his Application despite his requests for assistance, and states that representatives of OECTA told him that OECTA would not get involved in the application. The applicant also cites OECTA’s decision to support the respondent in a request to do for the application and a refusal to file a grievance for “the original 30 day suspension back in December 2010”.

9It is understandable that the applicant should feel uncomfortable about the union's involvement in the hearing, given that the union was adverse in interest to the applicant in respect of the request to defer, and that the applicant does not feel that the union has been very helpful. The fact remains that, in addition to OECTA’s involvement in the subject matter to be dealt with in the Application, the union does have an interest in such matters as any remedies that might be given if the applicant is successful at a hearing. The Tribunal indicated in Boyce v. Toronto Community Housing Corporation, 2009 HRTO 131, that:

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.

10I agree that OECTA has the requisite interest in this Application and the union is accordingly granted leave to intervene.

11In regard to the scope of OECTA’s intervention, this is best left to the Vice-chair or Member of the Tribunal who may be assigned a hearing. The parties will have the opportunity to make submissions as to the appropriate scope of the intervention.

Request to Defer

12On review of the filed materials relating to grievances dated August 28, 2011 and September 20, 2012, it appears that the subject-matter of the grievances overlaps significantly with the subject-matter of this Application.

13The Tribunal has generally deferred Applications where there is an ongoing grievance under a collective agreement based on the same facts and human rights issues. In explaining this approach, the Tribunal has referred to the fact that the Supreme Court of Canada has affirmed 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 (Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42).

14The Supreme Court thus confirmed that human rights tribunals are not the only decision-makers that can decide human rights claims. 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.

15Having said that, it is not clear to me that the Application should be deferred as there is some uncertainty as to the status of the grievances related to the Application.

16In his Response to the Request to Intervene, filed on February 22, 2013, the applicant states that there had been one meeting, on January 22, 2013, to deal with the grievances. He indicates that nothing was resolved at that meeting and that no further dates have been set. He also indicates that he intends to sign a memorandum of agreement that might relate to those grievances. In an e-mail to the Tribunal dated March 22, 2013, the applicant attached a copy of a further grievance, dated March 18, 2013, which appears to relate to the subject-matter of this Application.

ORDER

17The Application is amended to add a claim for monetary compensation related to a denial of short term disability benefits.

18OECTA is added as an intervenor.

19Both parties must inform the Tribunal of the current status of any grievances that concern the subject-matter of this Application, including the current schedule of events for the resolution of the grievances, within three weeks of the date of this Interim Decision, so that the Tribunal can make a decision as to whether deferral is appropriate. If the required information is not received within this time, the Application will be scheduled for mediation, which both parties have agreed to undertake.

20I am not seized of this matter.