Ferenczy v. Conseil des écoles publiques de l'Est de l'Ontario, 2014 HRTO 1636

Human Rights Tribunal of Ontario

Between:

Monika Ferenczy Applicant

-and-

Conseil des écoles publiques de l'Est de l'Ontario and Association des enseignantes et des enseignants de l'Ontario Respondents

Interim Decision

Adjudicator: Paul Aterman Date: November 7, 2014 Citation: 2014 HRTO 1636 Indexed as: Ferenczy v. Conseil des écoles publiques de l'Est de l'Ontario

Written Submissions

Monika Ferenczy, Applicant Self-represented

Conseil des écoles publiques de l'Est de l'Ontario, Respondent Sébastien Lorquet, Counsel

Association des enseignantes et des enseignants de l'Ontario, Respondent Lise Leduc, Counsel

1This Interim Decision explains why consideration of this Application, which alleges discrimination with respect to employment because of colour, ancestry, place of origin, ethnic origin and reprisal contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), is being deferred.

2The applicant works for the respondent French language school board as a teacher, and is a member of the respondent union. She alleges that over a number of years the school board has denied her opportunities to advance her career, singled her out for adverse treatment and then retaliated against her for having tried to enforce her rights under the collective agreement and the Code. The applicant maintains that, as a non-francophone, multilingual Canadian of Hungarian ancestry, her identity has been a factor in how she has been treated by the board. She also maintains that the union has colluded with the board in her adverse treatment.

3The school board denies any discrimination and maintains that the applicant has consistently been treated fairly and in accordance with both the collective agreement and its internal policies. The union also denies discrimination and maintains that it has properly advocated for the applicant's interests, while having due regard for the broader interests of the union membership as a whole.

4The respondents have each filed a Response that, together, include a number of requests. They seek dismissal of parts of the Application for delay and on the grounds that no prima facie case of discrimination is made out. They request dismissal of parts of the Application because they maintain that another proceeding has appropriately dealt with the substance of certain allegations. They request that a summary hearing be held to determine whether the Application has no reasonable prospect of success. Finally, they request that consideration of the Application be deferred because of an outstanding grievance filed by the union that should be resolved before the Application proceeds further.

5The grievance relates to a requirement by the board that the applicant produce a medical certificate for an absence from work and its refusal to credit her absence as a sick leave. The grievance has been referred to arbitration and the respondents are in the process of selecting a mutually acceptable arbitrator to hear the grievance.

6The applicant opposes deferral. She maintains that the grievance is focused on a single, narrow issue and does not capture the complexity or extent of the alleged Code violations by both respondents. She further maintains that it will be stressful for her to have to wait further to have the Application dealt with.

7The normal practice of the Tribunal is to defer considering an Application where there is a pending grievance and there is an overlap of facts and issues in the two proceedings. This is because 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). Deferral avoids the risk of conflicting determinations by two adjudicative bodies in relation to the same facts and issues.

8While I appreciate that the number and scope of allegations in this Application is greater than in the grievance, there is no reason to depart from the Tribunal's normal approach in this case. Furthermore, there is another pending grievance. It too relates to facts and issues raised in this Application. The two respondents have reached tentative agreement between themselves on resolving that grievance, however the applicant is not in agreement with its resolution. By deferring this Application the parties will be given time and an opportunity, if possible, to reach a final resolution of that second grievance. This is a further reason for deferral.

9For these reasons I consider it appropriate for the Tribunal to defer consideration of this Application pending resolution of the outstanding grievance. The various outstanding requests by the respondents can be addressed once the Application is reactivated.

Order

10The request to defer is granted. 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).