James v. Toronto District School Board, 2015 HRTO 359

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Anthony James

Applicant

-and-

Toronto District School Board, Shelly Mediratta, Dave Johnson and the Personal Respondents listed in Schedule A

Respondents

INTERIM DECISION

Adjudicator: Eli Fellman Date: March 23, 2015 Citation: 2015 HRTO 359 Indexed as: James v. Toronto District School Board

WRITTEN SUBMISSIONS

Anthony James, Applicant

Self-represented

Toronto District School Board Shelly Mediratta, Dave Johnson and the Personal Respondents listed in Schedule A except Paul Addie and Al Wolch, Respondents

Leola Pon, Counsel

Paul Addie and Al Wolch, Respondents

Matthew Wolch, Counsel

Introduction

1This is an Application filed on June 27, 2014, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination in employment on the basis of race, colour, ancestry, ethnic origin, disability and creed. This Interim Decision deals with the issue of whether the Application should be deferred pending the completion of a related grievance proceeding.

2The organizational respondent terminated the applicant’s employment effective June 26, 2013. On July 11, 2013, the Ontario Secondary School Teachers’ Federation (the “Union”) filed a grievance on the applicant’s behalf. The grievance notification indicates that it is seeking “damages for breach of his human rights” among other remedies. The grievance was denied on October 9, 2013. The Union referred the grievance to arbitration.

3On July 7, 2014, the Union advised the organizational respondent that it intended to withdraw the grievance.

4The applicant appealed the Union’s decision on August 6, 2014. It appears this appeal has not been completed.

DEFERRAL

5The applicant asserts that the Application should not be deferred because it addresses matters not included in his grievance, such as denial of opportunity in the workplace for training and advancement, manipulation of records and workplace harassment and discrimination.

6Counsel for the organizational respondent, who represents all but two of the personal respondents, supports deferral. Counsel for the remaining two personal respondents took no position on deferral.

7The Tribunal may defer consideration of an application, on such terms as it may determine (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. Absent good reason, applicants and respondents before the Tribunal are entitled to expect the Tribunal to take timely action to resolve claims of discrimination brought before it.

8The 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 notes 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. See Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42. While the grievance in this matter may have been technically completed once the Union withdrew the request for arbitration, the grievance process is ongoing as the applicant has filed an appeal of the Union’s decision. If the applicant’s appeal is successful, the grievance process would continue to the arbitration phase.

9In this case, it is apparent that there is substantial overlap between the facts and human rights issues covered by the Application and those referred to in the grievance. The grievance filed by the Union indicates that it is seeking “damages for breach of his human rights”. This is also what the applicant is seeking in his Tribunal Application. Therefore, I am satisfied that the circumstances of the present case do not justify a departure from the Tribunal’s normal approach. While I understand that the applicant believes that the Union and the organizational respondent are attempting to delay the process, the matter is still live as applicant’s appeal of the Union’s decision to withdraw the grievance has not been completed.

10The Application will therefore be deferred pending determination of the applicant’s appeal to the Union and, if that appeal is successful, 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.

PERSONAL RESPONDENTS

12The Application names a significant number of personal respondents in addition to organizational respondent. All but two of the personal respondents are employees of the organizational respondent. The other two named personal respondents, Paul Addie and Al Wolch, are employees of an independent consulting firm which was retained by the organizational respondent to conduct a third-party investigation into allegations of unprofessional conduct made against the applicant. Counsel for Mr. Addie and Mr. Wolch has asked that they be removed as respondents to this Application. This issue will be addressed if and when the Application is reactivated following deferral.

14I am not seized.

Dated at Toronto, this 23^rd day of March, 2015.

“Signed by”

Eli Fellman

Vice-chair

SCHEDULE A

List of Personal Respondents Named in Application 2014-18081-I*

Ali Abdi Wendy Banhan Cindy Beniteau Layden Bowles Michael Brophy Sylvie Burns Lisa Cawthorne Kavita Chhiba Peter Costiniou Craig Crone Lynn Davy Darshini D'Souza Craig Duncan Allan Easton Diana Evans Christine Gaitens Chris Glover Ron Gumbly Joyce Harrison Chuck Hay Patricia Hayes Mabel Ho Karen Hurst Dave Johnson Sunita Joshi Seema Kapil Lisa Kobayashi Peter Langford Kwame Lennon Tracey Mackenzie Patricia Matsoukas Shelley Mediratta Kathleen Meighan-Garner Pardeep Nagra Singh Maxine Reid Donelda Schwartzentruber Lynn Shannon Jean Shaw Gladys Silveira Bill Smith Cindy Styles Sandy Tierney Ian Turner Charlene Vassal Lou Vavougis Sean Woodsworth Paul Addie* Al Wolch*

*These respondents are not represented by Counsel for the TDSB