Stockert v. York Region District School Board, 2015 HRTO 1727

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Lindsay Stockert Applicant

-and-

York Region District School Board Respondent

-and-

Canadian Union of Public Employees and Local 1734 Intervenor

INTERIM DECISION

Adjudicator: Laurie Letheren Date: December 23, 2015 Citation: 2015 HRTO 1727 Indexed as: Stockert v. York Region District School Board

WRITTEN SUBMISSIONS

Lindsay Stockert, Applicant Self-represented

York Region District School Board, Respondent Andrew Zabrovsky, Counsel

Canadian Union of Public Employees and Local 1734, Intervenor Anne M. Gregory, Counsel

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

2On October 9, 2015, the Tribunal issued a Notice of Intent to Defer on the basis that grievances have been filed that appeared to address the same incidents as those alleged in the Application. The Tribunal sought the parties’ submissions.

3On November 9, 2015, the respondent filed its submissions and attached copies of the three grievance forms. The respondent advises that the grievances will be heard together and will likely proceed to arbitration shortly. The issues in the grievances and the available remedies significantly overlap with those raised in the Application. The arbitrator has the power to interpret and apply the Code, the evidence will be similar in both proceedings and the potential for inconsistent findings could result. Given that the arbitration process is already underway deferral would be most fair, just and expeditious approach to the two proceedings.

4The applicant opposes deferral. In her submissions filed December 15, 2015, she states that the grievances were closed with no decisions issued and disagrees that the issues addressed through the grievances are the same as those raised in her Application. She submits that it is fair and reasonable for the Application to move forward.

DECISION

5The 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: 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.

6In this case, although it is not clearly stated in the grievance forms, it appears that the facts and issues to be determined in the grievance arbitration are the same as many of 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.

7Applying the principles considered by the Tribunal in similar applications, I find it is appropriate to defer this Application pending the conclusion of the grievance proceedings. 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 expected to proceed fairly soon. Therefore, it is most fair, just and expeditious to defer this Application.

8Accordingly, the Application is deferred pending the conclusion of the three grievance proceedings 1734-2015-02-03; 1734-2015-10-02; and 1734-2015-10-05. The Tribunal directs the parties’ attention to Rule 14 of the Rules which sets out the procedure if a party wishes to proceed with an application that has been deferred.

9I am not seized.