Jackson v. Toronto Community Housing Corporation, 2009 HRTO 1085

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Sheila Jackson Applicant

-and-

Toronto Community Housing Corporation and Barry Thomas Respondents

INTERIM DECISION

Adjudicator: Michelle Flaherty Date: July 21, 2009 Citation: 2009 HRTO 1085 Indexed as: Jackson v. Toronto Community Housing Corporation

WRITTEN SUBMISSIONS BY

Sheila Jackson, Applicant | Barbara Adamson, Representative Toronto Community Housing Corporation and Barry Thomas, Respondents | William M. LeMay, Counsel Toronto Civic Employees’ Union, Local 416, Union | Risa Pancer, Representative

1The applicant filed an Application with the Tribunal pursuant to s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on March 18, 2009. The applicant alleges discrimination in the area of employment on the basis of race, colour, disability and sex. She also alleges reprisals or threat of reprisals as well as sexual solicitation or advances.

2The respondents filed a Response and requested that the Application be deferred pursuant to Rule 14.1. They argue there are ongoing grievances under a collective agreement based on the same facts and issues. The applicant filed a Reply in which she opposed the request for a deferral.

3Following an Interim Decision, 2009 HRTO 918, the applicant’s union, the Toronto Civic Employees’ Union, Local 416 (the “union”), provided written submissions regarding the deferral issue.

BACKGROUND

4The respondents state that five grievances filed on behalf of the applicant are proceeding to arbitration on September 29, 2009. They state that these grievances address discipline imposed on the applicant as well as allegations by the applicant that she was harassed by management pursuant to the Code.

5The applicant states that the substance of the grievances is different from that of the Application and, more specifically, that the issues of racial and sexual harassment are not before the arbitrator. She argues that it is “unlikely” that these issues will be addressed within the arbitration forum. She urges the Tribunal to proceed with the Application notwithstanding the upcoming grievance arbitration.

6The union states that the grievances “cover almost all of the issues” identified in the applicant’s submissions. According to the union, the only element raised in the Application but not covered in the grievance are the allegations relating to sexual solicitation and advances. The union argues that it would be fair and expeditious to defer the Application in the circumstances, because the arbitration will, in large part, address the matters raised in the Application.

7Pursuant to 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. 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.

8In this case, while there may be some issues raised in the Application that are not referred to in the grievances, I am satisfied that many of the facts and issues raised by this Application are part of a grievance process. Based on the material filed, I find that there is a significant overlapping of the substance of the Application and that of the grievance.

9In the circumstances, I find that the arbitration proceeding, scheduled to begin on September 29, 2009, should proceed to its conclusion before the Tribunal will deal with whatever might remain of the merits of the Application.

10I 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 (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42).

11In these circumstances deferral is appropriate. The Tribunal orders the deferral of the Application pending the conclusion of the grievance.