Picard v. Thunder Bay Catholic District School Board, 2014 HRTO 552

Human Rights Tribunal of Ontario

Between:

Denise Picard, Applicant

-and-

Thunder Bay Catholic District School Board, Respondent

-and-

Ontario Secondary School Teachers’ Federation – District 6A, Affected Party

Interim Decision

Adjudicator: David Muir Date: April 16, 2014 Citation: 2014 HRTO 552 Indexed as: Picard v. Thunder Bay Catholic District School Board

1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of disability.

2In its Response (Form 2) the respondent sought the early dismissal of the Application pursuant to s. 45.1 of the Code. Alternatively the respondent sought the deferral of the Application pursuant to s. 45 of the Code pending the conclusion of a grievance arbitration related to the same facts and issues as are raised in the Application.

3The applicant opposes both the request to dismiss and the request to defer. In my view it would be most fair, just and expeditious to defer this Application pending the conclusion of the grievance proceeding.

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.

5However the Tribunal has generally deferred applications where there is an ongoing grievance under a collective agreement based on the same facts. 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).

6In any case where the parties are already engaged in a concurrent legal proceeding in which they are raising the same 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 issues covered by the Application and those referred to in the grievance. The applicant argues that the grievance only deals with an alleged breach of her privacy and will not address her broader concerns of an alleged failure on the respondent’s part not to appropriately respond to an alleged disability. I have reviewed the grievance and I do not agree with the applicant’s position. It is clear on the face of the grievance that the applicant through the affected party is alleging that the respondent discriminated against her and is seeking remedies for the alleged discrimination. The grievance is not as argued by the applicant only concerned with an alleged breach of privacy. The Application will therefore be deferred pending the completion of the grievance process.

8The 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 other matters raised by the respondent and the affected party will be dealt with by the Tribunal if the Application is brought back on.

9I am not seized of this case.