Michail v. London District Catholic School Board, 2016 HRTO 745

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Myriam Michail

Applicant

-and-

London District Catholic School Board, Jan Mallender, Mary Liz Chen, Rodd Lucier, Colette McNally, Barb Mahon, Rita Haill, Linda Thomas, John Marinelli, Jim Sefeldas, Mark Priamo, Nick Vecchio, Rick Sheardown, Barb Reder, Shannon Askew, Maureen Bedek, Karin Kristoferson, and Edward DeDecker

Respondents

-and-

Ontario English Catholic Teachers Association

Intervenor

INTERIM DECISION

Adjudicator: Ken Bhattacharjee

Date: May 31, 2016

Citation: 2016 HRTO 745

Indexed as: Michail v. London District Catholic School Board

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.

2The applicant was employed by the London Catholic District School Board (the “employer”), and was a member of the Ontario English Catholic Teachers Association (the “union”).

3Since 2011, the union has filed several grievances on the applicant’s behalf, and two arbitration hearings have been completed and awards issued.

4On October 29, 2014, the employer terminated the applicant’s employment. On November 14, 2014, the union filed a grievance on the applicant’s behalf. That grievance and two earlier grievances were referred to arbitration.

5On October 28, 2015, 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 respondents discriminated against her with respect to employment, and subjected her to reprisals.

6The grievances filed on the applicant’s behalf by the union are currently before an arbitrator, but the hearing has been adjourned because the applicant filed a duty of fair representation complaint against her union on March 31, 2016.

7The respondents have requested that the Tribunal defer consideration of the Application pending the conclusion of the grievance proceeding. The union agrees with the respondents’ request. The applicant has requested that the Tribunal defer consideration of the Application, but only pending the conclusion of her duty of fair representation complaint against her union.

8Section 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.

9In 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.

10The 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.

11In my view, deferral is the most fair, just and expeditious way of proceeding with the Application, and the Application should be deferred pending the conclusion of the grievance proceeding. There is no dispute between the parties that the grievances were filed before the human rights Application was filed, the subject matter of the grievances and the Application are similar, and the arbitrator has the authority to interpret and apply the Code. These factors all weigh in favour of deferral.

12Given that there is still a proceeding before the arbitrator, I disagree with the applicant that the Application should only be deferred pending the conclusion of her duty of fair representation complaint against her union.

13Accordingly, the Tribunal orders the deferral of the Application pending the conclusion of the grievance proceeding.

14Pursuant 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.

15I am not seized of this matter.