Blackburn v. Toronto District School Board, 2014 HRTO 941

Human Rights Tribunal of Ontario

B E T W E E N:

Meichland Oliver Blackburn Applicant

-and-

Toronto District School Board Respondent

-and-

CUPE Local 4400 Affected Party

INTERIM DECISION

Adjudicator: David Muir Date: June 26, 2014 Citation: 2014 HRTO 941 Indexed as: Blackburn v. Toronto 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 colour, race and reprisal. Amongst other claims in his Application the applicant argues that he was disciplined and then terminated by his employer because of one or more of the prohibited grounds claimed. In his Application the applicant acknowledges that the facts of this Application are part of a grievance arbitration that is ongoing.

2On February 27, 2014 (amended by letter dated March 4, 2014) the Tribunal issued a Notice of Intent to Defer the Application pending the conclusion of the grievance proceeding. On the basis of the parties’ response to the NOID the Tribunal deferred the Application on consent by letter dated April 23, 2014.

3On June 5, 2014 the applicant filed a Request for Order During Proceeding (“Request”) seeking the reactivation of the Application. The applicant argues that the first day of the arbitration was adjourned because the respondent was not able to proceed and the next dates are not to take place until January and March 2015. The respondent responded to the Request, opposing it on the basis that the facts and issues in the arbitration overlap with the issues in the Application and that the arbitration is ongoing, amongst other bases. The affected party took no position but advised that a number of days of hearing have been scheduled in January and March 2015.

4In my view it would be most fair, just and expeditious to defer this Application pending the conclusion of the grievance proceeding.

5The 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.

6However 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).

7In 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.

8In 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(s). While the applicant argues that he has not raised his human rights complaints in his grievance(s) he has raised his discipline by his employer which is central to both cases. I also observe as indicated earlier that contrary to the applicant’s view the grievance arbitrator has complete authority to deal with a human rights issue which arises in the course of a grievance arbitration. In my view the overlap between the issues in dispute in these two proceedings raises the concerns with potential inconsistent findings of fact and improper use of private and public resources on which the Tribunal has normally based its decision to defer an Application. For these reasons I find that this is an appropriate case for deferral.

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.

10I am not seized of this case.