Senior v. Rainbow District School Board, 2017 HRTO 1542

Human Rights Tribunal of Ontario

Between:

Shannon Senior Applicant

-and-

Rainbow District School Board Respondent

Interim Decision

Adjudicator: Laurie Letheren Date: November 22, 2017 Citation: 2017 HRTO 1542 Indexed as: Senior v. Rainbow District School Board

Written Submissions

Shannon Senior, Applicant Self-represented

Rainbow District School Board, Respondent Kathleen Stokes, Counsel

1The applicant has filed an Application alleging discrimination in employment contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). This Application was filed on September 2, 2016.

2The applicant's union, Ontario Public Service Employees Union, filed a number of grievances on her behalf between March 8, 2017 and June 29, 2017. The grievance forms indicate that the union claims that the respondent employer failed to accommodate throughout the back-to-work process. The demand sought in the grievance is that the employer make the griever whole through full redress.

3The respondent has made a Request that the Application be deferred pending the outcome of the grievance on the basis that there are facts and issues raised in the grievance that are also raised in the Application.

4The applicant opposes the Request to Defer. She submits that the grievances are made with respect to incidents that occurred outside the time of the allegations made in the Application.

Decision

5The Tribunal may defer consideration of an application, on such terms as it may determine under Rule 14.1 of the Tribunal's Rules of Procedure. It is a discretionary measure that the Tribunal exercises on the basis of the circumstances in each case.

6The 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 (Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42).

7Deferral of an application ensures that proceedings dealing with the same issues do not run concurrently, avoiding the possibility of inconsistent decisions on facts or law.

8In considering whether to defer an application, the Tribunal will look at 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 to the parties to defer, having regard to the status of each proceeding and the steps that have been taken to pursue them. However, deferral is not automatically invoked simply because the parties are involved in other legal proceedings.

9The narrative of the Application alleges that the respondent failed to accommodate the applicant when it delayed her re-entry to work. In the portion of the Application where the applicant discusses the impact of the alleged Code breach, she alleges there were a number of issues that arose that resulted in a delay to return to full-time hours until May 2017 which appear to be the subject of some of the grievances.

10There is overlap between the facts and human rights issues covered by the Application and those to be addressed in a number of the grievances. The grievances are active and their outcome could be determinative of the issues that applicant seeks to have the Tribunal address and could provide the remedies she seeks.

11It is appropriate to defer the Application pending the completion of the grievance process. If the applicant believes, on conclusion of that process, that her human rights issues have not been adequately addressed, she may ask that his Application be re-activated by the Tribunal. A Request to Re-activate must be filed in accordance with Rules 14.3 and 14.4 of the Tribunal's Rules within 60 days after the conclusion of the other proceeding.

Order

12The Application is deferred pending the conclusion of the grievance proceedings.

13I am not seized.