Monika Ferenczy v. Conseil des écoles publiques de l’Est de l’Ontario and Association des enseignantes et des enseignants de l’Ontario, 2015 HRTO 990

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Monika Ferenczy Applicant

-and-

Conseil des écoles publiques de l’Est de l’Ontario and Association des enseignantes et des enseignants de l’Ontario Respondents

INTERIM DECISION

Adjudicator: Jo-Anne Pickel
Date: July 24, 2015 Citation: 2015 HRTO 990 Indexed as: Ferenczy v. Conseil des écoles publiques de l’Est de l’Ontario

WRITTEN SUBMISSIONS

Monika Ferenczy, Applicant Self-represented

Conseil des écoles publiques de l’Est de l’Ontario, Respondent Sébastien Lorquet, Counsel

Association des enseignantes et des enseignants de l’Ontario, Respondent Lise Leduc, Counsel

Introduction

1The applicant filed an Application against her employer and against her union alleging that they discriminated against her contrary to the Human Rights Code, R.S.O. 1990 c. H. 19, as amended (the “Code”).

2The history of the Tribunal’s treatment of her Application is set out in the following Interim Decisions: 2014 HRTO 1636 and 2015 HRTO 254. In short, the Tribunal deferred consideration of the Application pending the conclusion of a grievance that the applicant had filed with her union.

3On or around March 25, 2015, the applicant and/or her union withdrew her grievance.

4By Request for Order During Proceedings filed on May 1, 2015, the applicant sought to re-activate her deferred Application.

5The respondent school board opposes the applicant’s Request on the basis that she has filed a duty of fair representation complaint against the respondent union with the Ontario Labour Relations Board (“OLRB”). The applicant filed the complaint against her union on or around February 17, 2015, while her Application was deferred by this Tribunal.

6The OLRB complaint contains substantially the same text of most of the allegations against the respondent union contained in the Application and in the applicant’s subsequent request to amend the Application. The applicant also seeks many of the same remedies in her OLRB complaint as she does in her Application – that is, compensation for loss of employement and compensation in the nature of general damages.

7The parties took part in a mediation before the OLRB on May 26, 2015. The mediation was unsuccessful and the complaint is continuing in the OLRB’s process.

8The respondent school board submits that the Application should remain deferred due to the substantial overlap between the Application and the applicant’s OLRB complaint. As well, it submits that the remedy the applicant has sought in the OLRB complaint may lead the union to file further grievances relating to the events raised in the Application.

9The applicant takes the position that her Application was deferred pending the conclusion of the grievance proceeding in her case. She submitted that, since the grievance has been withdrawn, the Tribunal ought to proceed with the consideration of her Application.

Findings

10The Tribunal has consistently stated that deferral of an application ensures that proceedings dealing with the same or similar issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law. Applicants cannot file several parallel substantially similar claims in different forums and expect that all of them will be dealt with simultaneously in these parallel forums. Such a manner of proceeding would give rise to a serious risk of inconsistent decisions between different tribunals as well as a potentially unnecessary drain on publicly funded adjudicative resources.

11Some factors that have been identified as 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 types 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 Baghdasserians v. 674469 Ontario, 2008 HRTO 404.

12I find that the continued deferral of the Application is appropriate in this case, as the Application and the OLRB complaint are virtually identical. Moreover, there is a significant overlap in the remedies that the applicant has requested in both proceedings. Finally, the OLRB proceeding is at a more advanced stage. Despite being filed after the Application, it has proceeded to mediation and is continuing in the OLRB’s process.

Order

13The applicant’s request to re-activate her deferred Application is denied. The Application will remain deferred pending the conclusion of the OLRB proceeding into the applicant’s complaint against the respondent union.

14The parties are reminded that, where a party wishes to proceed with an application which has been deferred, the party must make a Request for an Order During Proceedings in accordance with Rule 19 within 60 days after the conclusion of the other proceeding (Rules 14.3 and 14.4).

15I am not seized of the Application.