McLaughlin v. Bluewater District School Board, 2015 HRTO 1523

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Robert McLaughlin

Applicant

-and-

Bluewater District School Board

Respondents

-and-

CUPE Local 1176

Affected Party

INTERIM DECISION

Adjudicator: David Muir

Date: November 12, 2015

Citation: 2015 HRTO 1523

Indexed as: McLaughlin v. Bluewater 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 and reprisal.

2On September 29, 2015 the Tribunal issued a Notice of Intent to Defer (NOID) this Application pursuant to s. 45 of the Code pending the conclusion of two grievance arbitrations and an application before the Ontario Labour Relations Board which appeared to be related to some or all of the same facts and issues as are raised in the Application.

3The respondent supports deferral because the issues raised in the arbitration are essentially the same as those in this case.

4The affected party did not respond to the NOID.

5The applicant opposes deferral on the basis that while the three proceedings concern some of the issues raised in the Application they do not include all of his allegations. The applicant also argues that the Tribunal can impose punitive damages while an arbitrator and the OLRB can not. The applicant also argues that the grievances are in abeyance and have been for months.

6The 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.

7However 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).

8In any case where the parties are already engaged in a concurrent legal proceeding in which they are raising all or some of 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.

9In this case the issues raised in the other three proceedings include many of the issues raised in this Application. The hearing at the OLRB is scheduled to take place on November 19 and 20, 2015. The status of the grievances is somewhat unclear at this stage. However in my view it is appropriate to defer this Application if only because of the pending proceeding at the OLRB – one of the important reasons to defer being to avoid different conclusions about the facts in two concurrent proceedings. As regards the applicant’s argument that the Tribunal has different remedial authority than a grievance arbitrator, etc.; whether or not the same or similar remedies are available is not determinative of the issue of deferral. I would also observe that the Tribunal has no authority to impose “punitive” damages.

10There may or may not be a dispute about the status of the grievances. The respondent states that they have been processed through the grievance procedure and are awaiting a “hearing meeting”. The applicant has said that they are in abeyance and have been for months, however I note that the grievances were filed in June and July 2015. It may be appropriate to reactivate this Application after the OLRB proceeding has concluded, if the grievances have not advanced any further.

11The Application will therefore be deferred pending the completion of these other proceedings.

12The 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 these other proceedings.

13I am not seized of this case.