Gomes v. Toronto District School Board, 2015 HRTO 1576

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

David Gomes Applicant

-and-

Toronto District School Board and Saverio Zupo Respondents

INTERIM DECISION

Adjudicator: Dawn J. Kershaw
Date: November 20, 2015
Citation: 2015 HRTO 1576
Indexed as: Gomes v. Toronto District School Board

Introduction

1This Application filed on April 16, 2015 alleges discrimination with respect to employment because of gender identity, gender expression and sexual orientation pursuant to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2This Interim Decision deals with the issue of whether the Application should be deferred pending the completion of related grievance proceedings.

3In the Application, the applicant requests that the Application be deferred pending outstanding grievances. The respondents also request deferral of the Application in their Form 2 Response.

Decision and Analysis

4The Tribunal may defer consideration of an application on such terms as it may determine, on its own initiative or at the request of a party (Rule 14.1). Deferral of an application seeks to ensure that proceedings dealing with the same facts or issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law. The Tribunal will generally defer an application where there is an ongoing grievance under a collective agreement based on the same facts and issues. However, the Tribunal must also consider whether deferral is the most fair, just and expeditious way of proceeding with the application.

5The 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 (Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42).

6The Supreme Court thus confirmed that human rights tribunals are not the only decision-makers that can decide human rights claims. Where the parties are engaged in a concurrent legal proceeding in which they are raising the same human rights 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.

7As stated in Melville v. Toronto (City), 2012 HRTO 22:

Deferral avoids two simultaneous proceedings that may result in conflicting determinations, ensures that the respondent need not be actively defending the same matter in two legal proceedings at the same time, and focuses the Tribunal’s limited resources on cases where it is the only process being pursued. In my view, it is consistent with the Tribunal’s mandate to interpret its rules in a fair, just and expeditious manner to defer a case when a grievance is ongoing, whether or not that grievance has yet been referred to arbitration. The grievance process is a stage in dispute resolution before the matter is referred to an independent third party, but that does not mean that there is no proceeding ongoing. Fairness supports avoiding the duplication of proceedings.

8In this case, it appears that there may be substantial overlap between the facts and human rights issues covered by the Application and those referred to in the ongoing grievances. The grievances include allegations that the respondent failed to take steps to protect the applicant from workplace violence, and specifically refer to the applicant’s human rights.

9If the applicant believes, on conclusion of the arbitration processes, that his human rights issues have not been adequately addressed, he may ask to have his Application brought back on before the Tribunal (“reactivation”).

10The Application will therefore be deferred pending the completion of the arbitration processes.

11The 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 arbitration process.

Order

12The Application is deferred pending the completion of the arbitration processes.

13The parties’ attention is drawn to Rules 14.3 and 14.4 of the Tribunal’s Rules of Procedure, which address how the Application may be brought back on before the Tribunal, following conclusion of the arbitration process.