Larkin Nero v. Halton District School Board, 2015 HRTO 1586

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Christine Larkin Nero

Applicant

-and-

Halton District School Board, Kevin Caughlin, David Euale, Debbie DeBoer, and Debra McFadden

Respondents

INTERIM DECISION

Adjudicator: Ken Bhattacharjee Date: November 24, 2015 Citation: 2015 HRTO 1586 Indexed as: Larkin Nero v. Halton District School Board

WRITTEN SUBMISSIONS

Christine Larkin Nero, Applicant

Wade Poziomka, Counsel

Halton District School Board, Kevin Caughlin, David Euale, Debbie DeBoer, and Debra McFadden, Respondents

John-Paul Alexandrowicz, Counsel

1The purpose of this Interim Decision is to decide whether the Tribunal should defer consideration of the Application pending the conclusion of a grievance proceeding.

2The applicant is employed by the Halton District School Board (the “Board”), and is a member of the Ontario Secondary School Teachers’ Federation (the “union”).

3On December 18, 2013, the union filed a grievance on the applicant’s behalf, which alleged that the Board’s direction that she submit to an Independent Medical Examination (“IME”), despite the fact that the Board had already received sufficient information from her doctors to accommodate her medical-related needs, was contrary to the Collective Agreement. As a remedy, the union requested that the Board accommodate the applicant’s needs in accordance with the information provided by her doctors. A hearing before an arbitrator began on October 14, 2015, and is scheduled to resume on January 7, 2016.

4On May 1, 2015, the applicant filed an Application with this Tribunal under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), which alleged that the respondents discriminated against her with respect to employment because of her disability, and subjected her to reprisals. Specifically, she alleged that the respondents failed to accommodate her disability-related needs in accordance with the medical information provided by her doctors, and subjected her to reprisals for claiming her right to be accommodated under the Code. The applicant acknowledged that the facts of her Application were part of a grievance proceeding, which was still ongoing, but opposed the deferral of her Application pending the conclusion of the grievance proceeding.

5On September 18, 2015, the respondents filed a Response and a Request for an Order During Proceedings (“RFOP”), which denied the allegations of discrimination and reprisal, and requested, among other things, that the Tribunal defer consideration of the Application pending the conclusion of the grievance proceeding.

6On November 9, 2015, the applicant filed a Reply to the Response and a Response to the RFOP, which maintained her opposition to the deferral of her Application pending the conclusion of the grievance proceeding because the Board is taking the position before the arbitrator that the grievance is moot, which means that the respondents’ deferral request is disingenuous, and the grievance relates solely to the Board’s direction that she submit to an IME, which is more narrow than the subject matter of her Application.

7On November 12, 2015, the respondents filed a letter, which admitted that they have raised a preliminary objection before the arbitrator that the grievance is moot, but stated that the issue has not yet been decided by the arbitrator, and that all issues in the grievance before the arbitrator are therefore still live.

8Section 45 of the Code provides that the Tribunal may defer an Application in accordance with the Tribunal’s Rules. Rule 14.1 of the Tribunal’s Rules of Procedure provides that the 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. The Tribunal will consider, in light of the particular circumstances of each case, whether deferral is the most fair, just and expeditious way of proceeding with the Application.

9In Baghdasserians v. 674469 Ontario, 2008 HRTO 404, the Tribunal made the following general 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.

10The Supreme Court of Canada has confirmed that human rights tribunals are not the only decision-makers that can decide human rights claims. See Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42. Where the parties are already 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. See Tekes v. Markham (Town), 2009 HRTO 1665 at para. 7.

11In my view, deferral is the most fair, just and expeditious way of proceeding with the Application. Although the subject matter of the Application appears to be somewhat broader than the subject matter of the grievance, the main issue is the same, namely, whether the Board accommodated the applicant’s disability-related needs in accordance with the Code. In essence, the applicant wants the grievance proceeding and the proceeding before this Tribunal to be running concurrently, which raises the possibility of inconsistent decisions on facts or law. Furthermore, the grievance proceeding started well before the human rights Application was filed, and is in the midst of a hearing before an arbitrator who has the authority to interpret and apply the Code. These factors all weigh in favour of deferral.

12I place little countervailing weight on the fact that, as a litigation strategy, the Board has raised a preliminary objection before the arbitrator that the grievance is moot.

13In my view, the applicant has not identified a compelling circumstance which would cause the Tribunal to depart from its normal approach. Accordingly, the Tribunal orders the deferral of the Application pending the conclusion of the grievance proceeding.

14Pursuant to Rules 14.3 and 14.4 of the Tribunal’s Rules, where a party wishes to proceed with an Application which has been deferred, the party must file a Request for an Order During Proceedings (Form 10) within 60 days after the conclusion of the other proceeding. The Tribunal’s Rules and Forms can be found on its website.

15I am not seized of this matter.