Lloyd v. Ottawa Carleton Board of Education, 2017 HRTO 1188

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jeffrey Lloyd

Applicant

-and-

Ottawa Carleton Board of Education

Respondent

INTERIM DECISION

Adjudicator: Yasmeena Mohamed
Date: September 12, 2017
Citation: 2017 HRTO 1188
Indexed as: Lloyd v. Ottawa Carleton Board of Education

WRITTEN SUBMISSIONS

Jeffrey Lloyd, Applicant
Self-represented

Ottawa Carleton Board of Education, Respondent
Richard Sinclair, Counsel

1This Interim Decision addresses whether the Tribunal should defer consideration of the Application pending the conclusion of the grievance arbitration proceeding in this case.

2The applicant filed an Application alleging discrimination because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H. 19, as amended (the “Code”). Specifically, the applicant alleged that the respondent breached the Code by failing to place him in the “Day Replacement” position because of his disability and by implementing its policy of requiring prior approval from its Health and Wellness Department regarding suitability of his placement in the said position.

3In addition to filing this Application, the applicant filed a grievance with his union. The applicant's union referred the grievance to arbitration.

4The respondent has requested that the Tribunal defer consideration of the Application pending the conclusion of the grievance arbitration proceeding.

5The applicant opposed deferral on several grounds, which included but were not limited to the grounds that: the union has had a history of not resolving grievances in a timely manner and the arbitration might be delayed by approximately 3 to 4 years; the union has ownership over grievances and the power to withdraw his grievance at any time and that arbitrators have no jurisdiction to award the public remedies claimed in the Application.

Deferral

6The 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 generally deferred applications where there is an ongoing grievance under a collective agreement based on the same facts and human rights issues. The reason for this is that grievance arbitrators have, not only the power, but also the responsibility to enforce human rights and other employment-related statutes as if they were part of a collective agreement. See Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42.

7In this case, I find it appropriate for the Tribunal to defer consideration of the Application pending the conclusion of the grievance arbitration proceeding in this matter. The applicant conceded in his response to the Tribunal’s Notice of Intent to Dismiss that the grievance relates to the denial of the “Day Placement’ position. This is the same issue pleaded in the Application. In my view, the facts and issues to be determined in this application will be identical to those in the grievance and there is substantial risk of inconsistent findings of fact and/or law if the Application and the grievance were to proceed together.

8If the applicant believes that the grievance arbitration proceeding did not appropriately deal with the substance of his Application, he may seek to re-activate his deferred Application. However, the applicant should take note that, under s. 45.1 of the Code, the Tribunal has the power to dismiss applications if the substance of an application has been appropriately dealt with in another proceeding.

9Rules 14.3 and 14.4 of the Tribunal’s Rules of Procedure address how an application may be brought back before the Tribunal following conclusion of another proceeding. It should be noted that, a party wishing to proceed with an application must file a Request for Order During Proceedings (Form 10) no later than 60 days after the conclusion of the other proceeding. The Tribunal’s Rules of Procedure and Forms can be found on its website at www.sjto.gov.on.ca/hrto/.

order

10For the above reasons, the Tribunal defers consideration of this Application pending the conclusion of the grievance arbitration proceeding in this case.