Passarelli v. Hamilton-Wentworth Catholic District School Board, 2015 HRTO 393

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Rema Passarelli

Applicant

-and-

Hamilton-Wentworth Catholic District School Board

Respondent

-and-

Ontario English Catholic Teachers Association

Intervenor

INTERIM DECISION

Adjudicator: Douglas Sanderson

Date: March 26, 2015

Citation: 2015 HRTO 393

Indexed as: Passarelli v. Hamilton-Wentworth Catholic District School Board

WRITTEN SUBMISSIONS

Rema Passarelli, Applicant

Marc Munro, Counsel

Hamilton-Wentworth Catholic District School Board, Respondent

Margot Blight, Counsel

Ontario English Catholic Teachers Association, Intervenor

Jerry Raso, Counsel

1This is an Application filed under s. 34 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. This Interim Decision deals with the issue of whether the Application should continue to be deferred pending the completion of a related grievance proceeding.

2In an earlier Interim Decision in this matter, Passarelli v. Hamilton-Wentworth Catholic District School Board, 2014 HRTO 964, dated July 2, 2014, the Tribunal deferred this Application pending conclusion of a related grievance-arbitration proceeding. The applicant filed a Request for an Order During Proceedings on January 2, 2015 in which she seeks an order reactivating the Application. The applicant submitted that the grievance to which the Application was deferred has been concluded by a settlement. The applicant acknowledged that the intervenor filed another grievance related to incidents in question in the Application seeking damages for lost salary. The applicant submitted, however, that the grievance does not seek redress for violations of the Code.

3The respondent filed a Response to a Request for an Order on February 24, 2015 in which it opposes reactivation of the Application. The respondent acknowledged that the grievance to which this Application was deferred was settled, but submitted that the intervenor filed another grievance on behalf of the applicant related to the incidents in question in this Application. Specifically, the intervenor grieved an unpaid suspension the respondent imposed on the applicant due to allegedly inappropriate behaviour and deficiencies in her performance. The parties have expedited the arbitration hearing and have held hearing dates on January 1, 21 and 30, 2015 and have scheduled seven other dates in 2015 to complete the hearing. The respondent submitted that the arbitrator must determine what conduct the applicant engaged in and whether the respondent was justified in imposing administrative and disciplinary sanctions. The respondent submitted that the Tribunal shall be required to address the same factual issues to determine whether it was justified in its concern that a psychological issue may have affected the applicant’s performance. The respondent noted that there is no dispute that the applicant is not and was disabled at any relevant time.

Analysis and Decision

4The 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). 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. Deferral is not automatically invoked simply because the same parties are involved in other legal proceedings, see Haskins v. TNS Canadian Facts, 2008 HRTO 287 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: see Calabria v. DTZ Barnicke, 2008 HRTO 411 and Kaj v. Orsini Bros. Inns, 2009 HRTO 170.

5As noted in the earlier Interim Decision in this matter, 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. Both the grievance arbitration and this Application concern alleged acts by the applicant that caused the respondent to take significant disciplinary and administrative actions. Whether the respondent’s actions were justified is an important issue in both proceedings, although the applicant submitted that the applicant does not seek redress for Code violations before the arbitrator. In my view, the issues engaged in the two proceedings continue to overlap significantly and the grievance arbitration proceeding is already well advanced. In these circumstances, deferral pending the conclusion of the grievance arbitration proceeding continues to be appropriate.

Order

6The request to reactivate the hearing is denied.

7The 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.

8I am not seized.