Somogyi v. Hamilton (City), 2008 HRTO 342

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jennifer Somogyi

Applicant

-and-

City of Hamilton (Public Works, Hamilton Street Railway), Scott Stewart, Don Hull, Chris Garrish, Keith Andrews, Doug Murray, Ryan Fletcher, Nenzi Cocca and Nadia Olivieri

Respondents

INTERIM DECISION

Adjudicator: Eric Whist

Date: December 2, 2008

Citation: 2008 HRTO 342

Indexed as: Somogyi v. Hamilton (City)

1This is an Application filed September 3, 2008 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”). The Application alleges discrimination in employment based on sex and alleges that the applicant was subject to reprisal or threat of reprisal for attempting to claim and enforce her rights under the Code. This interim decision deals with a request to defer.

BACKGROUND

2The Application includes a copy of a grievance filed by the applicant on January 22, 2008 that is currently in progress. The grievance alleges that the applicant was harassed, subjected to a poisoned work environment and treated contrary to the Code.

3The Response states that this grievance was filed in relation to the same events underlying the applicant’s Application to the Tribunal and that the grievance is scheduled to go to arbitration. The Response submits that the provisions of the Ontario Labour Relations Act and the collective agreement provide for a process that has the ability to deal with human rights issues including the presentation of evidence and the examination of witnesses before an independent arbitrator. The respondent asks that the Tribunal exercise its authority under section 14.1 of its Rules and defer the Application pending the outcome of the applicant’s grievance.

4The Response also asks that the applicant’s union, the Amalgamated Transit Union, Local 107, be named a respondent.

5The Reply provides the applicant’s arguments for why the Application should not be deferred. It states that while the grievance was filed in January 2008 it is currently not progressing as no arbitration date has been set and no arbitrator has been agreed to. It argues that few arbitrators have the expertise to deal with the serious human rights issues raised in the Application including poisoned work environments, an issue the Reply claims would likely be considered inadmissible in the arbitration of an individual grievance. The Reply further argues that the remedial relief available through arbitration would be inadequate given the circumstances of the applicant’s case and it is the Tribunal which has the appropriate expertise and mandate to ensure appropriate broad based remedies.

6The Reply also argues that it is not for the respondent to seek to add more respondents.

7The applicant has also made a request for an Order (Form 10) to amend the Application to provide more information about the applicant’s general work environment and why it is poisoned.

DECISION

8The 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 (Rule 14.1). The Tribunal will generally defer an application where there is an ongoing grievance under a collective agreement based on the same facts and issues. However, the Tribunal must also 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.

9The facts and issues raised by this Application are part of a grievance process that is still in progress. I am not persuaded by the applicant’s submission to the effect that a grievance arbitration is not an adequate forum to determine the human rights issues raised by the applicant. 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 Social Services Administration Board v. O.P.S.E.U., Local 342, 2003 SCC 42). Further, the fact that an arbitration date has not yet been scheduled is not sufficient reason for the Tribunal to depart from its normal approach.

10In these circumstances deferral is appropriate. The Tribunal orders the deferral of the Application pending the conclusion of the grievance.

11Given my decision to defer the Application it is unnecessary to rule on the issue of adding the applicant’s union as a respondent or on the request to amend the Application at this time.

12Where a party wishes to proceed with an application which has been deferred, the party must make a Request for an Order During Proceedings in accordance with Rule 19 within 60 days after the conclusion of the other proceeding (Rules 14.3 and 14.4).

13I am not seized of this matter.