MacDonald v. Waterloo Catholic District School Board, 2015 HRTO 331

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Lisa MacDonald

Applicant

-and-

Waterloo Catholic District School Board,

Judy Skinner, Connie Eaton and Maura Quish

Respondents

-and-

Canadian Union of Public Employees, Local 2512

Affected Party

INTERIM DECISION

Adjudicator: David Muir

Date: March 17, 2015

Citation: 2015 HRTO 331

Indexed as: MacDonald v. Waterloo Catholic 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 association with a member of a protected group.

2On February 4, 2015, pursuant to s. 45 of the Code, the Tribunal issued a Notice of Intent to Defer this Application pending the conclusion of a grievance arbitration related to some of the same facts and issues as are raised in the Application.

3The respondent supports deferral.

4The applicant opposes deferral on the basis that the first day of hearing in the grievance arbitration is scheduled to begin in January 2016. The applicant believes that this is too long to wait for a resolution of the case.

5Having reviewed the grievance material filed to date I find that the facts and issues raised in the two proceedings are largely the same.

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 two proceedings are largely the same. In particular the applicant’s allegation that her termination was discriminatory is raised in both proceedings. The grievance was filed shortly before this Application. In my view the facts and issues being raised in the two proceedings are the same and accordingly are sufficient to support deferral – one of the important reasons to defer being to avoid different conclusions about the facts in two concurrent proceedings. The fact that the first day of hearing is already scheduled but in January 2016 is not a sufficiently compelling reason to justify a departure from the Tribunal’s usual approach in these cases.

10The Application will therefore be deferred pending the completion of the grievance process.

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 grievance process. The other matters raised by the respondent and the affected party will be dealt with by the Tribunal if the Application is brought back on.

12I am not seized of this case.