Novembre v. Toronto District Catholic School Board, 2014 HRTO 220

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Linda Novembre

Applicant

-and-

Toronto District Catholic School Board

Respondent

INTERIM DECISION

Adjudicator: Douglas Sanderson

Date: February 18, 2014

Citation: 2014 HRTO 220

Indexed as: Novembre v. Toronto District Catholic School Board

APPEARANCES

Linda Novembre, Applicant

Self-represented

Toronto District Catholic School Board, Respondent

Sharon Duffy, Counsel

1This is an Application filed on October 25, 2013 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). This Interim Decision deals with the issue of whether the Application should be deferred pending the completion of a related grievance proceeding.

2The applicant indicates in the Application that the facts of the Application are part of a union grievance proceeding that is still in progress, and encloses a copy of the grievance filed on his behalf by her union, the Canadian Union of Public Employees, Local 1328 (the “union”).

3The applicant, who is an Educational Assistant for the respondent, states in her application that she has sustained several injuries in the course of her employment. The applicant states that she is unable to return to her pre-injury position because of her physical and mental condition and that the respondent is refusing to accommodate her return to work in another position. In its Response, the respondent submitted that the union filed a grievance on behalf of the applicant alleging that the respondent failed to accommodate the applicant, consistent with the allegations set out in the Application. The respondent noted that the union referred the matter to arbitration on December 5, 2013.The respondent also noted that the applicant’s injury is also the subject of an ongoing proceeding before the Workplace Safety and Insurance Board. The applicant stated in her Reply that the grievance was engaged in a timely manner and that information regarding the grievance is incorrect and has been withheld from her.

4The 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.

5The 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).

6The Supreme Court thus confirmed that human rights tribunals are not the only decision-makers that can decide human rights claims. Where the parties are already engaged in a concurrent legal proceeding in which they are raising the same human rights issues before a decision-making body with the authority to make determinations about those issues, the orderly administration of justice favours deferral to the other proceeding. In such a scenario, the Tribunal’s normal approach is to defer to the other proceeding.

7In this case, it is apparent that there is substantial overlap between the facts and human rights issues covered by the Application and those referred to in the grievance. The matter is still live and the grievance has been referred to arbitration. If the applicant believes, on conclusion of the process, that his human rights issues have not been adequately addressed, he may ask to have his Application brought back on before the Tribunal.

8The Application will therefore be deferred pending the completion of the grievance process.

9The Tribunal directs the parties’ attention to Rules 14.3 and 14.4 which outline the procedure by which the Application may be brought back on after the conclusion of the grievance process. The Union’s Request to Intervene will be dealt with by the Tribunal if the Application is brought back on.