Formosi v. Halton Catholic District School Board, 2015 HRTO 1347

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jodi-Anne Formosi

Applicant

-and-

Halton Catholic District School Board

Respondent

-and-

Ontario English Catholic Teachers Association

Intervenor

INTERIM DECISION

Adjudicator: Laurie Letheren

Date: October 8, 2015

Citation: 2015 HRTO 1347

Indexed as: Formosi v. Halton Catholic District School Board

WRITTEN SUBMISSIONS

Jodi-Anne Formosi, Applicant

Self-represented

Halton Catholic District School Board, Respondent

Sarah A. Eves, Counsel

Ontario English Catholic Teachers Association, Intervenor

Jerry Raso, Counsel

1The applicant has filed an Application alleging discrimination in employment on the basis of disability and reprisal contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2On August 28, 2015, the Tribunal issued a Notice of Intent to Defer on the basis that a grievance has been filed that appeared to address the same incidents as those alleged in the Application. The Tribunal sought submissions from the parties on the issue of deferral.

3On September 7, 2015, the applicant filed submissions opposing deferral on the basis that the union has carriage of the grievance process, an arbitration ruling will have no consequences for the respondent, there is no guarantee that the arbitrator will appropriately deal with the Code issues, and refusing to defer would expedite the process at the Tribunal.

4On September 25, 2015, the respondent filed submissions on the issue of deferral. The respondent submits that the union has filed a number of grievances that are now consolidated. The issues to be addressed at the grievances and the remedies sought are substantially identical to those raised in the Application; the arbitrator has the power to interpret and apply the Code; it would be a waste of resources to have two adjudicative bodies dealing with the same issues at the same time; the evidence will be similar in both proceedings and the potential for inconsistent findings could result.

5In addition, the respondent indicates that an arbitrator has been assigned to the grievances and that six days of hearing have been completed in the grievance arbitration and further dates have been set, with a final day set for February 26, 2016.

Decision

6The Tribunal may defer consideration of an application, on such terms as it may determine, on its own initiative or at the request of any party. See Rule 14.1 of the Tribunal’s Rules of Procedure. The Tribunal must consider, in light of the particular circumstances of each case, whether deferral is the most fair, just and expeditious way of proceeding with an application. In Baghdasserians v. 674469 Ontario, 2008 HRTO 404, the Tribunal made the following comments about deferral at paras. 18-19:

Deferral of an application ensures that proceedings dealing with the same issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law. However, deferral is not automatically invoked simply because the parties are involved in other legal proceedings.

Some of the factors that may be relevant in deciding whether to defer consideration of an application before the Tribunal are the subject matter of the other proceeding, the nature of the other proceeding, the type 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.

7In this case the facts and issues to be determined in the grievance arbitration appear to be the same as the allegations in the 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. See Mattingly v. Ontario (Community Safety and Correctional Services), 2015 HRTO 21.

8Applying the principles considered by the Tribunal in similar applications, I find it is appropriate to defer this Application pending the conclusion of the grievance proceeding. It would not be constructive to have two proceedings consider concurrently the same facts, as this may lead to contrary findings. The grievance arbitration is scheduled to conclude within the next four months. Therefore, it is most fair, just and expeditious to defer this Application.

9Accordingly, the Application is deferred pending the conclusion of the grievance proceeding. The Tribunal directs the parties’ attention to Rule 14 of the Tribunal’s Rules of Procedure which sets out the procedure if a party wishes to proceed with an application that has been deferred.

10I am not seized.