HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Elmer Blanco

Applicant

-and-

Toronto District School Board and Icilda Elliston

Respondents

INTERIM DECISION

Adjudicator: Jo-Anne Pickel

Date: September 23, 2014

Citation: 2014 HRTO 1411

Indexed as: Blanco v. Toronto District School Board

WRITTEN SUBMISSIONS

Elmer Jose Blanco, Applicant

Self-represented

Toronto District School Board and Icilda Elliston, Respondent

Gail Geronimo, Counsel

Introduction

1The purpose of this Interim Decision is to determine whether this Application should be deferred pending the resolution of the grievances filed on behalf of the applicant.

2The applicant filed an Application alleging that the respondents discriminated against him contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). Specifically, he alleged that the respondents discriminated against him with respect to his teaching time table, by denying his application for Assistant Curriculum leader, and by declaring his position surplus to the school where he was teaching.

3The respondents requested that the Tribunal defer consideration of the Application pending the outcome of two grievances filed on behalf of the applicant and a policy grievance filed by the applicant’s union. The first grievance filed on behalf of the applicant relates to comments made by the Principal during a staffing committee meeting. These comments are also contained in the Application. The applicant alleged in the Application that these comments led to his being declared surplus. The second grievance filed on behalf of the applicant challenges the respondent’s decision to declare him surplus. Both grievances claim that the respondent’s actions were discriminatory. The policy grievance filed by the union relates to the process which led to the applicant being declared surplus.

4The applicant opposed deferral for several reasons. He argued that the collective agreement does not preclude his right to file an Application under the Code. He also argued that the area of expertise of grievance arbitrators relates to employment-related issues and not the Code. The applicant also claimed that not all of the issues raised in his Application have been raised in his grievances and that the grievances only claim that the respondents’ actions were discriminatory rather than claiming a violation of the Code. Finally, the applicant claimed that previous grievances have not prevented any further discrimination by the respondents.

decision

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 of the Tribunal’s Rules of Procedure). Deferral of an Application seeks to ensure that proceedings dealing with the same facts or issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law. Contrary to the applicant’s submissions, 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 a part of the collective agreement. See Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42. Thus, the Tribunal will generally defer an Application where there is an ongoing grievance under a collective agreement based on the same facts and issues.

6Since the issues in the Application and the grievances overlap almost completely, proceeding with the Application could lead to inconsistent decisions on the facts and/or legal issues raised in the Application and the grievances. I find it irrelevant that the grievances only claim discrimination and do not specifically refer to the Code. As a result, I find it appropriate to defer this Application pending the completion of the grievance proceedings in this matter. Although the applicant claims that the grievances may not provide him with his desired result, the information filed with the Tribunal provides no indication that the grievances are not proceeding in accordance with the procedures set out in the collective agreement.

7The parties’ attention is drawn to Rules 14.3 and 14.4 of the Tribunal’s Rules of Procedure, which address how the Application may be brought back on before the Tribunal, following conclusion of the grievance proceedings. It should be noted that, where 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).

8The Tribunal’s Rules of Procedure are available on the Tribunal’s website, www.hrto.ca under “Law, rules and Policies”.

ORDER

9For the reasons set out above, the Tribunal defers consideration of the Application pending the completion of the grievance proceedings in this matter.

10I am not seized of this matter.