Westaway v. Toronto District School Board, 2014 HRTO 1344

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Paula Westaway

Applicant

-and-

Toronto District School Board

Respondent

-and-

Canadian Union of Public Employees, Local 4400

Intervenor

INTERIM DECISION

Adjudicator: Paul Aterman

Date: September 11, 2014

Citation: 2014 HRTO 1344

Indexed as: Westaway v. Toronto District School Board

WRITTEN SUBMISSIONS

Paula Westaway, Applicant

Self-represented

Toronto District School Board, Respondent

Gail Geronimo, Counsel

Canadian Union of Public Employees, Local 4400, Intervenor

Kelly Doctor, Counsel

1Consideration of this Application, which alleges discrimination with respect to employment because of disability and reprisal contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), will be deferred until the completion of a pending arbitration hearing. The reasons below explain why.

2The applicant is employed by the respondent as a caretaker. She alleges that the respondent refused to accommodate her disability by adjusting the hours she is required to work. The respondent has not yet filed a Response.

3The applicant is a member of the Canadian Union of Public Employees, Local 4400 (“the union”). A grievance was filed on the applicant’s behalf on October 17, 2013 in relation to the same issues that are the subject of this Application. The grievance alleges a failure to accommodate the applicant’s disability and maintains this is a breach of the both the collective agreement and the Code.

4The current status of the grievance is that it has been referred to arbitration, but the arbitrator has not yet been selected and hearing dates have not been scheduled.

5The respondent requests deferral of the Application and that it not be required to file a Response until the arbitration concludes. The union takes no position on deferral, but notes that there is considerable overlap between the facts and issues in this Application and the grievance. The applicant does not want the Application to be deferred, but she does not really explain why. Most of her submission deals with the stress she has experienced as a result of this conflict and she also notes that she was unaware that the grievance is going to arbitration.

6The 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 allegations of discrimination brought before it.

7In 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).

8As a result, where there is a pending grievance and there is an overlap of facts and issues between the pending grievance and the Application before the Tribunal, the normal practice of the Tribunal is to defer considering the Application.

9In this case there is a significant overlap of facts and issues, the grievance is proceeding to arbitration and none of the parties has put forward a reason to depart from the Tribunal’s normal practice. I determine that it is appropriate to defer consideration of this Application until the arbitration concludes.

10As the Application is deferred, the respondent is not required to file a Response until the Application is reactivated.

order

11The Application is deferred until the grievance arbitration concludes. The Tribunal directs the parties’ attention to Rules 14.3 and 14.4, which explain how a party may seek to bring the Application back on after the conclusion of the grievance arbitration.

12The respondent is not required to file a Response until the Application is reactivated.