Darrell Hicks v. Hamilton-Wentworth District School Board, 2016 HRTO 1091

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Darrell Hicks

Applicant

-and-

Hamilton-Wentworth District School Board

Respondent

INTERIM DECISION

Adjudicator: Ken Bhattacharjee
Date: August 15, 2016
Citation: 2016 HRTO 1091
Indexed as: Hicks v. Hamilton-Wentworth District School Board

WRITTEN SUBMISSIONS

Darrell Hicks, Applicant
Self-represented

Hamilton-Wentworth District School Board, Respondent
Jane Gooding, Counsel

1The purpose of this Interim Decision is to decide whether the Tribunal should defer consideration of the Application pending the conclusion of a grievance proceeding.

2In the fall of 2014, the applicant began working for the respondent as an Adult Day School Teacher.

3On June 2, 2015, the Ontario Secondary School Teachers' Federation District 21 (the “union”) filed a grievance on the applicant’s behalf, which alleged that the respondent had terminated his employment, and that he was not afforded any representation by the union prior to his termination. The grievance requested a number of remedies, including a return to teaching duties when possible, and payment of any lost wages.

4On September 3, 2015, the union referred the grievance to arbitration.

5On January 4, 2016, the applicant filed an Application with this Tribunal under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), which alleged that the respondent discriminated against him with respect to employment because of his disability. Specifically, he alleged that the termination of his employment was discriminatory.

6On April 8, 2016, the respondent file a Response, which denied the allegation of discrimination, and requested that the Application be dismissed on the basis of jurisdiction because the Application is untimely, and on the basis that it has no reasonable prospect of success.

7On May 3, 2016, the applicant filed a Reply, which, among other things, denied that his Application was untimely.

8On June 10, 2016, the respondent filed a Request for Summary Hearing, which reiterated its request that the Application be dismissed on the basis of jurisdiction because the Application is untimely, and on the basis that it has no reasonable prospect of success. The applicant did not file a Response to the Request.

9On June 20, 2016, the applicant filed a Request for an Order During Proceedings, which requested that the Application be deferred pending the conclusion of the grievance proceeding.

10On July 4, 2016, the respondent filed a Response to the Request, which opposed deferring the Application.

11Section 45 of the Code provides that the Tribunal may defer an Application in accordance with the Tribunal’s Rules. Rule 14.1 of the Tribunal’s Rules of Procedure provides that the 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. The Tribunal will consider, in light of the particular circumstances of each case, whether deferral is the most fair, just and expeditious way of proceeding with the Application.

12In Baghdasserians v. 674469 Ontario, 2008 HRTO 404, the Tribunal made the following general comments about deferral at paras. 18-19:

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. However, deferral is not automatically invoked simply because the parties are involved in other legal proceedings.

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.

13The Supreme Court of Canada has confirmed that human rights tribunals are not the only decision-makers that can decide human rights claims. See Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42. 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. See Tekes v. Markham (Town), 2009 HRTO 1665 at para. 7.

14In my view, deferral is the most fair, just and expeditious way of proceeding with the Application. The grievance was filed before the human rights Application was filed, the grievance and the Application are both in relation to the alleged termination of the applicant’s employment, the grievance has been referred to arbitration, and the arbitrator has the authority to interpret and apply the Code. These factors all weigh in favour of deferral.

15In its submissions, the respondent stated that the Tribunal should not defer the Application because the subject matter of the grievance is not a human rights issue. Rather, the grievance concerns whether union representation was afforded to the applicant at the time of his alleged termination. The respondent also stated that no scheduled date had been set for arbitration, despite the length of time that the grievance had been active. The respondent further stated that the Tribunal must first consider the issue of jurisdiction before considering the deferral issue because it cannot take jurisdiction over the Application to defer the same, only to later find that it was without jurisdiction to hear the Application in the first instance.

16I disagree. First, the grievance is challenging the alleged termination of the applicant’s employment, and is not merely about the issue of whether union representation was afforded to the applicant at the time of his alleged termination. Allowing two proceedings dealing with the alleged termination of the applicant’s employment to run concurrently clearly raises the possibility of inconsistent decisions on facts or law. Furthermore, although the grievance does not explicitly raise the Code, the scope of alleged breaches of Articles of the Collective Agreement and applicable legislation is broad.

17Second, although no scheduled date had been set for arbitration, the fact remains that the grievance was filed before the human rights Application was filed, and is at a more advanced stage than the Application before this Tribunal.

18Third, the Tribunal is not obliged to first consider the issue of jurisdiction before considering the deferral issue. Section 41 of the Code provides that the Tribunal’s Rules shall be liberally construed to permit the Tribunal to adopt practices and procedures, including alternatives to traditional adjudicative or adversarial procedures that, in the opinion of the Tribunal, will facilitate fair, just and expeditious resolutions of the merits of the matters before it. Rule 1.7 g) of the Tribunal’s Rules clearly states that in order to provide for the fair, just and expeditious resolution of any matter before it the Tribunal may determine and direct the order in which issues in a proceeding, including issues considered by a party to be preliminary, will be considered and determined. It is important to keep in mind that the respondent has simply made an allegation, which is disputed by the applicant, that the Application is outside the Tribunal’s jurisdiction. Given the Tribunal’s mandate to resolve Applications fairly, justly and expeditiously, it cannot be correct that if a respondent raises a jurisdictional issue, the Tribunal has no discretion to determine and direct when it will be considered and determined amongst the issues before the Tribunal.

19Accordingly, the Tribunal orders the deferral of the Application pending the conclusion of the grievance proceeding.

20Pursuant to Rules 14.3 and 14.4 of the Tribunal’s Rules, where a party wishes to proceed with an Application which has been deferred, the party must file a Request for an Order During Proceedings (Form 10) within 60 days after the conclusion of the other proceeding. The Tribunal’s Rules and Forms can be found on its website.

21I am not seized of this matter.