Rios Alvaro v. District School Board Ontario North East, 2016 HRTO 970

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Nerea Rios Alvaro

Applicant

-and-

District School Board Ontario North East (DSBONE)

Respondent

INTERIM DECISION

Adjudicator: Alison Renton Date: July 22, 2016 Citation: 2016 HRTO 970 Indexed as: Rios Alvaro v. District School Board Ontario North East

1This Application alleges discrimination with respect to employment because of race, place of origin, ethnic origin, and reprisal contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). In the workplace, the applicant is represented by OSSTF (“the union”).

2The applicant alleges, in her Application, that in December 2014 she filed an application with the Tribunal, which has been deferred (“the first application”). See Alvaro v. District School Board Ontario North East, 2015 HRTO 668. Since filing her first application, she alleges that she has lost 66% of her employment, and that she has been subjected to reprisals due to filing the first application. She cites, as examples, being denied permanent work and losing work. She identified in her Application that she has filed a grievance about the loss of work, and attached a copy of the grievance. It is dated November 18, 2015.

3The Tribunal sent a Notice of Tribunal Intent to Defer (“NOID”) to the parties and the union, stated that it may be appropriate to defer the Application, and requested that the parties and the union file submissions. The respondent and the applicant have now filed submissions. The union has not and the time for filing has elapsed.

4The respondent submits that the Application should be deferred pending the disposition of the grievance. It submits that the applicant’s November 18, 2015 grievance raises precisely the same fact as is raised in her Application. It advises that a step 2 grievance meeting was held on December 1, 2015, which was denied by the respondent. The union subsequently, on December 16, 2015, referred the grievance to arbitration. The respondent has identified its nominee to the board of arbitration. The respondent provided copies of the grievance and communications it had with the union pertaining to the grievance and its referral to arbitration.

5The applicant opposes deferral. She submits that the grievances to which her first application was deferred still have to be heard at arbitration and that the grievance process to arbitration is taking too long. She submits as well that the grievance does not mention the Code.

analysis

6The Tribunal may defer consideration of an application, on such terms as it may determine, and on its own initiative (Rule 14.1 of the Tribunal’s Rules of Procedure). 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.

7The 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 a collective agreement (Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42).

8The Supreme Court thus confirmed that human rights tribunals are not the only decision-makers that can decide human rights claims. 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.

9In this case, the issues identified in the grievance and the Application are the same and the grievance, which was filed before the Application, has been referred to arbitration. In my opinion, it is appropriate to defer the Application for a six-month period of time. At the end of the six months, the parties are directed to provide an update about the status of the grievance and whether or not dates for arbitration have been set.

10Upon receipt of this information, the Tribunal will determine whether continued deferral is appropriate, or whether a party should request re-activation.

11It should be noted that where a party wishes to proceed with an application which has been deferred, the party must file a Request for an Order During Proceedings in accordance with Rules 14.3 and 14.4 of the Tribunal’s Rules within 60 days after the conclusion of the other proceeding.

12I am not seized with this matter.