Human Rights Tribunal of Ontario
B E T W E E N:
Ruth Haig Applicant
-and-
Thames Valley District School Board Respondent
INTERIM DECISION
Adjudicator: Dawn J. Kershaw Date: February 20, 2014 Citation: 2014 HRTO 234 Indexed as: Haig v. Thames Valley District School Board
WRITTEN SUBMISSIONS
Thames Valley District School Board, Respondent Peter Thorup, Counsel
Introduction
1This Application alleges discrimination with respect to employment because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code").
2On January 9, 2014, the Tribunal issued a Notice of Intent to Defer due to an outstanding grievance, requesting submissions from the parties by February 10, 2014.
3On February 7, 2014, the respondent filed its Response and submissions on deferral. The applicant has not provided submissions.
Decision and Analysis
4The Application is deferred pending resolution of the outstanding grievance.
5The Tribunal may defer consideration of an application on such terms as it may determine, on its own initiative or at the request of a party (Rule 14.1). 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. The Tribunal will generally defer an application where there is an ongoing grievance under a collective agreement based on the same facts and issues. However, the Tribunal must also consider whether deferral is the most fair, just and expeditious way of proceeding with the application.
6Some factors that have been considered in deciding whether to defer are: the subject matter of the other proceeding; the nature of the other proceeding; the types of remedies available in the other proceeding; and whether it would be fair overall to the parties to defer, having regard to the status of each proceeding and the steps that have been taken to pursue them. See Baghdasserians v. 674469 Ontario, 2008 HRTO 404.
7As stated in Melville v. Toronto (City), 2012 HRTO 22 at para. 8:
Deferral avoids two simultaneous proceedings that may result in conflicting determinations, ensures that the respondent need not be actively defending the same matter in two legal proceedings at the same time, and focuses the Tribunal’s limited resources on cases where it is the only process being pursued. In my view, it is consistent with the Tribunal’s mandate to interpret its rules in a fair, just and expeditious manner to defer a case when a grievance is ongoing, whether or not that grievance has yet been referred to arbitration. The grievance process is a stage in dispute resolution before the matter is referred to an independent third party, but that does not mean that there is no proceeding ongoing. Fairness supports avoiding the duplication of proceedings.
8The respondent states that the applicant’s grievance filed on May 8, 2013 alleges, among other things, that the respondent has violated the Code on the basis of disability.
9The respondent states that the matter has been referred to arbitration and the parties are in the process of selecting a mediator.
10Given that both the Application and the grievance claim a violation of the Code on the basis of disability, proceeding with the Application at the Tribunal could very well lead to inconsistent decisions on the facts and/or legal issues raised in the Application and the grievance. The primary purpose of deferring an application is to avoid such potential inconsistency.
11I find that, in all of the circumstances, deferring the Application is appropriate. It will be the most fair and just way of proceeding.
Order
12The Application is deferred pending the completion of the grievance and arbitration process.
13The 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 process.
Dated at Toronto, this 20th day of February, 2014.
"Signed by"
________________________________ Dawn J. Kershaw Vice-chair