Allen v. Toronto District School Board, 2016 HRTO 1149

Human Rights Tribunal of Ontario

B E T W E E N:

Jean Allen

Applicant

-and-

Toronto District School Board and Heidi Kessler

Respondents

-and-

Canadian Union of Public Employees, Local 4400

Intervenor

INTERIM DECISION

Adjudicator: Jo-Anne Pickel

Date: August 30, 2016

Citation: 2016 HRTO 1149

Indexed as: Allen v. Toronto District School Board

WRITTEN SUBMISSIONS

Jean Allen, Applicant

George Brown, Counsel

Toronto District School Board, Respondent

Andrew Zabrovsky, Counsel

Heidi Kessler, Respondent

Tim Gleason, Counsel

Canadian Union of Public Employees, Local 4400, Intervenor

Tim Gleason, Counsel

1This Interim Decision addresses whether this Application should be deferred pending the outcome of related grievances filed by the applicant’s union.

2In her Application, the applicant alleged that the respondents discriminated and reprised against her contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). Among other things, the applicant alleged that the personal respondent, who was her supervisor as well as a union steward, harassed and targeted her because she bore a grudge against the applicant’s husband.

3Prior to filing her Application, the applicant filed an internal complaint under the corporate respondent’s human rights policy. On February 11, 2016, an external investigator issued a report following an investigation into the complaint. The applicant filed her Application on March 29, 2016 and the Tribunal delivered it to the respondents on April 1, 2016. On April 27, 2016, the union filed a number of grievances including grievances on behalf of the applicant as well as the personal respondent and one of the applicant’s co-workers. The personal respondent and the union are both represented by the same counsel. Both submitted that the Tribunal should defer consideration of the Application pending the resolution of the grievances filed by the union.

4The applicant states that she did not ask the union to file a grievance on her behalf. In fact, she was unaware that the union filed a grievance on her behalf until the personal respondent and her union raised the issue in their deferral requests to the Tribunal.

findings

5The 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 of the Tribunal’s Rules of Procedure). Deferral of an Application seeks to ensure that proceedings dealing with the same facts or issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law. The Tribunal generally defers applications where an applicant has filed a grievance under a collective agreement based on the same facts and issues raised in his or her application.

6The Application and the grievance filed by the union on behalf of the applicant do raise some of the same facts and issues. However, the applicant did not consent to her union filing the grievance on her behalf. In these circumstances, I do not consider it appropriate to defer consideration of the Application pending the conclusion of a grievance the applicant did not herself file and had no knowledge of prior to her union and the personal respondent raising it in this proceeding.

7I also do not agree that the existence of other overlapping grievances filed by the union on behalf of the personal respondent and one of the applicant’s co-workers justifies a deferral of the Application.

order

8The deferral request is denied. The Tribunal will continue to process the Application. Since all parties have agreed to mediation, the next step will be for the Tribunal to schedule a mediation in this case.