Janette Blais v. Ottawa Carlton District School Board, 2013 HRTO 678

Human Rights Tribunal of Ontario

B E T W E E N:

Janette Blais

Applicant

-and-

Ottawa Carlton District School Board

Respondent

INTERIM DECISION

Adjudicator: Ena Chadha

Date: April 23, 2013

Citation: 2013 HRTO 678

Indexed as: Blais v. Ottawa Carleton District School Board

WRITTEN SUBMISSIONS

Ottawa Carlton District School Board, Respondent

Roger R. Mills, Counsel

Ontario Secondary School Teacher’s Federation, Affected Party

Susan Luft, Counsel

1This Application was filed on September 13, 2012, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended ("Code"), alleging discrimination with respect to employment on the basis of disability.

2The applicant alleges that the respondent employer failed to accommodate her medically-related need for a modified schedule. The applicant provided a copy of a workplace grievance dated August 23, 2011 regarding the issues of accommodation and work scheduling and the applicant noted that this grievance is still pending.

3The respondent filed a Response and requests that the Tribunal defer the Application pending the conclusion of the grievance arbitration process. The respondent provided a copy of the applicant's grievance form dated May 22, 2012, and notes that the grievance process is proceeding in accordance with the provisions of the collective agreement.

4The applicant's union, the Ontario Secondary School Teacher's Federation, as the affected party has also requested that the Application be deferred on the basis that the grievance and Application pertain to the same facts and same human rights issues.

Deferral

5The 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.

6Some 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.

7The 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.

8I find that this Application should be deferred on the basis that there is an outstanding grievance relating to the issues of accommodation and scheduling as alleged in the Application. Based on the respondent's submissions, it is apparent that the grievance and the parties' attempts to deal with the issues of modified work through the provisions of the collective agreement pre-date the Application. Based on this information, it appears that a grievance addressing the issues related to the applicant's human rights concerns is well underway. As such, I see no basis to depart from the Tribunal's regular approach to defer an Application where the Application overlaps with an active grievance.

9Accordingly, this Application will be deferred pending the conclusion of the grievance/arbitration process.

ORDERS

10The Tribunal orders that the Application is deferred pending the conclusion of the grievance/arbitration process.

11Where 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).

12I am not seized of this matter.