Alyaa Abas v. Peel District School Board, 2017 HRTO 1463

Human Rights Tribunal of Ontario

B E T W E E N:

Alyaa Abas

Applicant

-and-

Peel District School Board

Respondent

INTERIM DECISION

Adjudicator: Eban Bayefsky

Date: November 6, 2017

Citation: 2017 HRTO 1463

Indexed as: Abas v. Peel District School Board

WRITTEN SUBMISSIONS

Alyaa Abas, Applicant

Self-represented

Peel District School Board, Respondent

Roy C. Filion, Counsel

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

2The applicant filed an Application alleging discrimination in employment on the grounds of race, ancestry, place of origin, ethnic origin, creed and association with a person identified by one or more of these grounds, contrary to the Human Rights Code, R.S.O. 1990, c. H. 19, as amended (the "Code").

3Specifically, the applicant alleged that, over a roughly twelve year period, the respondent subjected her to harassing and discriminatory treatment in her employment as a teaching assistant, culminating in her being wrongfully dismissed in October 2016. The applicant sought various remedies, including monetary compensation for general damages and reinstatement to her former position.

4In addition to filing this Application, the applicant filed a grievance on October 18, 2016, alleging that she was "terminated without just cause" and seeking to be "reinstate[d]…without loss of seniority or compensation and any other appropriate remedy." The respondent has advised that the grievance has yet to be referred to arbitration.

5In its Response to the Application, the respondent requested that the Tribunal defer consideration of the Application pending the conclusion of the grievance proceeding, given the significant overlap between the allegations and remedies sought in the two proceedings.

6On September 29, 2017, the Tribunal forwarded the Response to the applicant, advising that the respondent had asked that the Application be deferred. The Tribunal directed the applicant to file a Reply to the Response, including complete submissions in response to the request to defer.

7On October 20, 2017, the applicant filed her Reply, but did not address the respondent's request to defer the Application.

FINDINGS

8The 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.

9In this case, I find it appropriate for the Tribunal to defer consideration of the Application pending the conclusion of the grievance proceeding.

10Both the Application and grievance will address the central issue of the circumstances and fairness of the applicant's dismissal. While the grievance is still in its infancy, and does not specifically identify the human rights issues raised in the Application, it is, in my view, likely to deal with many of the same allegations of discriminatory treatment and/or termination on discriminatory grounds. Allowing the two cases to proceed at the same time may lead to inconsistent findings.

11The Application should, therefore, be deferred pending the outcome of the grievance.

12If the applicant believes that the grievance proceeding did not appropriately deal with the substance of her Application, she may seek to re-activate her 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.

13Rules 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

14For the above reasons, the Tribunal defers consideration of this Application pending the conclusion of the grievance proceeding in this case.