Ftaich v. Conseil Scolaire Viamonde, 2013 HRTO 656

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Adel Ftaich

Applicant

-and-

Conseil Scolaire Viamonde and Marc Frenette

Respondents

INTERIM DECISION

Adjudicator: Jo-Anne Pickel

Date: April 19, 2013

Citation: 2013 HRTO 656

Indexed as: Ftaich v. Conseil Scolaire Viamonde

1This Interim Decision deals with the issue of whether the Application should be deferred pending the completion of a related grievance proceeding.

2The Applicant filed an application alleging that the respondents harassed and discriminated against him because of disability, ancestry, and place of origin contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (“the Code”). Among other things, the applicant alleges that he was subjected to a series of demeaning and discriminatory comments by his supervisor, the personal respondent. He also alleges that the organization respondent violated the Code by failing to accommodate his disability and suspending him indefinitely.

3The applicant indicates in the Application that the facts of the Application are part of one or more grievances filed on his behalf by his union, the Ontario Secondary School Teachers’ Federation (the “union”). The applicant forwarded to the Tribunal copies of three grievances which alleged that his suspension and dismissal were without just cause. On February 28, 2013, the Tribunal sent the parties a Notice of Intent to Defer consideration of the Application pending the resolution of the ongoing grievance proceeding in the matter. The Tribunal sought submissions from the applicant, respondents and the applicant’s union as to whether it was appropriate to defer consideration of the Application.

4The applicant submits that a deferral would not be appropriate because he lacks faith in his union as a result of what he believes is a resistance to filing grievances on his behalf. The union and the respondents submit, without providing reasons, that it is appropriate for the Tribunal to defer consideration of the Application pending the outcome of the grievance.

5The Tribunal may defer consideration of an application, on such terms as it may determine, and on its own initiative (Rule 14.1). The Tribunal has stated that deferral is not automatically invoked simply because the parties are involved in other legal proceedings. It is a discretionary measure that the Tribunal exercises on the basis of the circumstances in each case. Absent good reason, applicants and respondents before the Tribunal are entitled to expect the Tribunal to take timely action to resolve complaints of discrimination brought before it.

6The 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).

7The 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 or similar 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.

8In this case, it is apparent that there is substantial overlap between the facts and legal issues covered by the Application and those referred to in the grievance. I am satisfied that the concerns the applicant raises about his union do not justify a departure from the Tribunal’s normal approach. The matter is still live and the grievance process has not concluded. It is not yet apparent whether or not the applicant’s grievance will be referred to arbitration. If the applicant believes, at the conclusion of the process, that his human rights issues have not been adequately addressed, he may ask to have his Application brought back on before the Tribunal.

9The Application will therefore be deferred pending the completion of the grievance process.

10The Tribunal directs the parties’ attention to Rules 14.3 and 14.4 which outline the procedure by which the Application may be brought back on after the conclusion of the grievance process. It should be noted that a request to proceed with the Application must be filed no later than 60 days after the conclusion of the grievance process.