Smrke v. Sudbury District Catholic School Board, 2014 HRTO 918

Human Rights Tribunal of Ontario

B E T W E E N:

Christine Smrke Applicant

-and-

Sudbury District Catholic School Board Respondent

INTERIM DECISION

Adjudicator: Paul Aterman Date: June 25, 2014 Citation: 2014 HRTO 918 Indexed as: Smrke v. Sudbury District Catholic School Board

WRITTEN SUBMISSIONS

Christine Smrke, Applicant Self-represented

Sudbury District Catholic School Board, Respondent Amanda Lawrence, Counsel

1This Interim Decision explains why the Tribunal is deferring consideration of this Application, which 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").

2The applicant works as a teacher for the respondent. She alleges that the respondent is aware that she has a number of medical conditions, that it refuses to accommodate her and has disciplined her because she has taken medical leave.

3The applicant is a member of a union and it has filed three grievances on her behalf. The grievances are about the same issues as the Application raises, and the first two grievances explicitly allege Code violations. An arbitration hearing has begun into the first grievance and is ongoing. The second grievance was referred directly to arbitration in March of 2014 after being filed on February 24, 2014, bypassing the initial three steps of the grievance process. The third grievance was filed on March 25, 2014 and has not yet been referred to arbitration.

4The respondent has requested that the Application be deferred pending resolution of the grievances.

5The applicant opposes deferral on the grounds that the grievances do not deal with the same issues as her Application. She does not explain how they are different. She also argues that the grievances are taking too long to be addressed, that she has been diagnosed with a serious illness and this is why the Tribunal should deal with her Application. The first grievance was filed in 2011.

6The Tribunal may defer consideration of an application, on such terms as it may determine, and on its own initiative (Rule 14.1). 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 allegations of discrimination brought before it.

7In this case there is a substantial overlap of facts and issues between the grievances and the ones raised in this Application. The Tribunal has generally deferred applications where there is an ongoing grievance under a collective agreement based on the same facts and human rights issues. This is because arbitrators have not only the power but also the duty to enforce the Code (Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42).

8This overlap of facts and issues, along with failure of the applicant to explain how the subject matter of this Application is different from the subject matter of the other proceedings, are reasons to exercise discretion in favour of deferral. In addition, arbitration of the first grievance has already begun and the second grievance has been referred directly to arbitration. While I appreciate that the applicant wants to have her Application resolved quickly, particularly given her health issues, the grievances are further advanced than this Application. This is another reason to defer.

order

9The Application is deferred pending resolution of the grievances.

10The parties' attention is directed to Tribunal Rules 14.3 and 14.4, which outline the procedure by which a party may seek to bring the Application back on after the conclusion of the other proceedings.