Nancy Seewald v. Greater Essex County District School Board, 2016 HRTO 459

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Nancy Seewald

Applicant

-and-

Greater Essex County District School Board, Larry Gignac and Steve Lebel

Respondents

-and-

International Brotherhood of Electrical Workers Local 773

Intervenor

INTERIM DECISION

Adjudicator: Naomi Overend

Date: April 12, 2014

Citation: 2016 HRTO 459

Indexed as: Seewald v. Greater Essex County District School Board

1This Interim Decision deals with the issue of whether this Application should be deferred pending the completion of a related grievance proceeding.

2The respondent requested that the Tribunal defer this matter to a grievance proceeding in its Response. The Tribunal advised the applicant to provide her submissions on deferral in its March 18, 2016 letter enclosing the Response. The applicant send in submissions opposing the request to defer in her Reply (Form 3).

Decision and analysis

3The 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.

4The 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. See Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42.

5The applicant is represented by International Brotherhood of Electrical Workers, Local 773 (the “union”). The union has filed a grievance on the applicant’s behalf concerning the imposition of the three-day suspension outlined in the Application. It advises that the grievance is scheduled to be heard by an arbitrator on April 13 and June 17, 2016.

6The applicant acknowledges that this suspension is at the centre of the allegations in her Application, but states that the problems are ongoing, and that she has recently received a five-day suspension. She states that it is her intention to either amend her Application or file a new application concerning this event. She also intends to file a grievance with respect to this most recent suspension.

7The applicant further submits:

The situation which currently exists at work, basically, a deteriorated and tense relationship between the Applicant and her direct supervisor and department manager, requires swift action in the way of certain remedies which are available under the Act and not available through the grievance procedure.

8The applicant does not provide any more explanation of her position. It is not clear why the procedure under the Tribunal would result in “swift action” while the grievance procedure would not. Moreover, she has not specified what remedies she is seeking in this process that would not be available to her in the grievance process.

9The central issue in this Application, as it currently stands, will be addressed at the upcoming grievance and it would be unfair to the respondent to make it participate in two concurrent processes which might lead to conflicting factual conclusions. Given that the grievance process is now well underway,the most just, fair and expeditious route would be defer this Application pending the outcome of the grievance process

order

10The Application will therefore be deferred pending the completion of the grievance process.

11The 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.