Reich v. Durham Catholic District School Board, 2015 HRTO 730

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Yvonne Reich

Applicant

-and-

Durham Catholic District School Board and Lon Thomas Coghlan

Respondents

INTERIM DECISION

Adjudicator: Jennifer Scott Date: June 3, 2015 Citation: 2015 HRTO 730 Indexed as: Reich v. Durham Catholic District School Board

1This is an Application filed on January 2, 2015 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended. This Interim Decision deals with the issue of whether the Application should be deferred pending the completion of a related grievance proceeding.

2The applicant indicates in the Application that the facts of the Application are part of a union grievance proceeding that is still in progress, and encloses a copy of a grievance filed on her behalf by her union, the Ontario English Catholic Teachers Association (the “union”).

3The respondents request deferral of the Application pending conclusion of the grievance process. The respondents assert the facts of the Application are the subject of an ongoing grievance proceeding which consists of five consolidated grievances filed by the union. The hearing of those grievances has commenced.

4The applicant opposes deferral of the Application because she is not confident the grievance proceeding will address her human rights issues and is concerned about the delay that has occurred in that proceeding. The applicant advises the Ontario College of Teachers has commenced an investigation into her competence as a teacher. She believes the Ontario College of Teachers will take her human rights into account in their investigation if the Tribunal does not defer the Application.

5The 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. Absent good reason, applicants and respondents before the Tribunal are entitled to expect the Tribunal to take timely action to resolve complaints of discrimination brought before it.

6The 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 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).

7The Supreme Court thus confirmed that human rights tribunals are not the only decision-makers that can decide human rights claims. 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.

8In this case, it is apparent that there is substantial overlap between the facts and human rights issues covered by the Application and the grievance proceeding. I am satisfied that the concerns the applicant raises about grievance process do not justify a departure from the Tribunal’s normal approach. The matter is still live and the grievance process has not concluded. If the applicant believes, on conclusion of the process, that her human rights issues have not been adequately addressed, she may ask to have her Application brought back on before the Tribunal.

9The Application will therefore be deferred pending the completion of the grievance process.

10The 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.