Zwicker v. Toronto District School Board, 2013 HRTO 856

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Heather Zwicker

Applicant

-and-

Toronto District School Board

Respondent

INTERIM DECISION

Adjudicator: Paul Aterman

Date: May 17, 2013

Citation: 2013 HRTO 856

Indexed as: Zwicker v. Toronto District School Board

WRITTEN SUBMISSIONS

Toronto District School Board, Respondent

Grant Bowers, Counsel

background

1The applicant filed an Application 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. On January 23, 2012 the applicant, who is a member of the Canadian Union of Public Employees, Local 4400, also filed a grievance. Like the Application, the grievance alleges a failure of the respondent employer to accommodate her disability.

2On April 3, 2013 the Tribunal invited submissions from the parties on whether the Application should be deferred pending resolution of the grievance proceedings. They were directed to file their submissions by May 3, 2013.

3The respondent argues that the facts supporting both this Application and the grievance proceedings are the same, and that the grievance is proceeding. The parties have selected an arbitrator and the arbitration hearing has been scheduled for June 14, 2014. Given the factual overlap and the arbitrator’s authority to apply the Code, the respondent argues that the Application should be deferred.

4The applicant has not filed any submissions, and the time for doing so has now passed.

analysis

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).

7In this case there is a clear overlap between subject matter of the grievance and this Application. They both arise out of the same set of facts and make the same core allegation, namely that the respondent employer failed to accommodate the applicant’s disability. Further, the grievance is proceeding and a date has been set for the arbitration hearing. Finally, by not providing submissions on this issue, the applicant has not brought forward any reason not to defer the Application. Accordingly, the Application will be deferred.

order

8The Application will be deferred until the grievance proceedings are resolved.

9The Tribunal directs the parties’ attention to Rules 14.3 and 14.4, which outline the procedure by which a party may seek to bring the Application back on after the conclusion of the grievance process.