Decker v. Toronto District School Board, 2016 HRTO 1693

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Eric Decker

Applicant

-and-

Toronto District School Board

Respondent

INTERIM DECISION

Adjudicator: Jo-Anne Pickel

Date: December 30, 2016

Citation: 2016 HRTO 1693

Indexed as: Decker v. Toronto District School Board

WRITTEN SUBMISSIONS

Eric Decker, Applicant

Patrick James, Counsel

Toronto District School Board, Respondent

Gail Geronimo, Counsel

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

2In his Application, the applicant alleged that the respondents discriminated and reprised against him contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended. In particular, the applicant alleged that the respondents discriminated against him, subjected him to a poisoned work environment, failed to accommodate his disability and subjected him to reprisals for seeking accommodations for his disability. In his Application, the applicant listed 16 ways in which the respondent discriminated or reprised against him.

3Prior to filing a Response, the respondent filed a request to defer the Application on the basis that the applicant allegedly initiated a grievance that overlaps with the Application. The applicant objected to the respondent’s request on the basis that the union filed the grievance unilaterally and not at the applicant’s request. The union initially refused to provide the applicant with a copy of the grievance after it was filed and the applicant has had no involvement in the grievance process. As well, the union submitted that the grievance does not raise human rights issues and only relates to one incident of excessive discipline.

findings

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 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.

5In my view, it is not appropriate to defer consideration of the Application due to the grievance filed by the applicant’s union for several reasons. First, there is minimal overlap between the Application and the grievance. As noted above, the applicant raised 16 ways in which the respondent discriminated against him. One of the main allegations in his Application relates the respondent’s alleged failure to accommodate his disability. Meanwhile, the grievance relates to a single incident of alleged excessive discipline. Second, I find it relevant that the applicant did not initiate the union’s filing of the grievance on his behalf. Finally, the grievance is at an early stage and there is no evidence as to whether the applicant’s grievance will be referred to arbitration.

6In all these circumstances, I do not consider it appropriate to defer consideration of the Application pending the conclusion of the grievance filed by the applicant’s union.

order

7The respondent’s deferral request is denied. The respondent must file a full Response no later than 28 days after the date of this Interim Decision.