Gan v. District School Board of Niagara, 2014 HRTO 783

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Diane Gan

Applicant

-and-

District School Board of Niagara

Respondent

INTERIM DECISION

Adjudicator: Naomi Overend

Date: June 2, 2014

Citation: 2014 HRTO 783

Indexed as: Gan v. District School Board of Niagara

APPEARANCES

Diane Gan, Applicant ) Self-represented

District School Board of Niagara, ) John-Paul Alezandrowicz, Counsel

Respondent )

1This Interim Decision deals with the issue of whether the Application should be deferred pending the completion of a related grievance proceeding. The applicant indicated in the Application that she had an outstanding grievance that was still in progress.

2The Tribunal sent a Notice of Intention to Defer on April 4, 2014, in which it asked the parties to file written submissions on whether the Tribunal should defer the Application pending the resolution of these proceedings. The applicant filed submissions opposing deferral while the respondent filed submissions in support of it.

Decision and analysis

3The 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.

4The 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. See Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42.

5The more difficult issue in this case is whether the grievance is sufficiently broad to warrant deferral. The Application is composed of the usual form, plus multiple, unnumbered pages, in which the applicant has interspersed documents, which appear to form a chronology of her difficulties with the respondent Board from 2005 to 2013.

6The respondent points out that the date of the last incident of alleged discrimination cited by the applicant in her Application (filed on February 18, 2014) is February 19, 2013. This is in reference to an incident(s) that occurred at Kerhahan Park Secondary School on that date, for which the applicant subsequently received an Incident Report.

7On March 27, 2013, the applicant received a letter of discipline from the respondent detailing the February 19, 2013 incident and also referencing 6 other incidents from 2011 and 2012 for which the applicant received incident reports, letters or warnings. It is this letter that the applicant’s union, the Ontario Secondary School Teachers Federation, has grieved on her behalf.

8The applicant is correct in saying that the grievance does not reference any anti-discrimination provisions of the Collective Agreement, but this is not to say that human rights issues cannot be addressed at the arbitration hearing, currently scheduled for October 15, 2014.

9Moreover, regardless of whether the arbitrator does or does not deal squarely with the applicant’s allegations of discrimination, he or she will have to address the issue of whether the applicant has repeatedly been the recipient of unwarranted or unjust discipline for conduct which she also details in her Application.

10It is clear from the applicant’s one-paragraph summary of her allegations in section 8 of her Form 1 that the applicant’s concern is that her lengthy history of negative interactions is now leading to discipline, which she fears will ultimately lead to the termination of her employment with the respondent:

There has been an ongoing series of discriminatory events over the past several years. In addition to examples of supervisory over-supervision and making me feel unwelcome, there are other minor incidents which I have been held accountable for that would likely not have been an issue at all for a teacher that was not a minority, was younger, or who did not have an accent. Please see the attached files documenting situations from 2005 through to 2013. My employer is now trying to push me through the discipline process with an aim towards eventual termination.

11On May 15, 2014, after the parties had filed their submissions, the applicant sent in a new and/or amended Application form in which she has added more recent incidents (allegedly occurring after she filed her Application) and changed the date of the last incident, but not the summary quoted above. Until the applicant actually files a Request for an Order During Proceedings asking to amend her Application, and the Tribunal issues an order, the status of this document is uncertain.

12In any event, the fact remains that central issues in this Application will be addressed at this grievance and it would be unfair to the respondent to make it participate in two concurrent processes which might lead to conflicting factual conclusions. The Tribunal agrees with the respondent’s submissions that given that the grievance process is now well underway (the hearing is scheduled to commence in 4 ½ months), the most just, fair and expeditious route would be defer this Application pending the outcome of the grievance process

order

13The Application will therefore be deferred pending the completion of the grievance process.

14The 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.