Bi Ying Lam v. Ontario Ombudsman, 2009 HRTO 1261

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Bi Ying Lam

Applicant

-and-

Ontario Ombudsman, Eva Kalisz, Mary Nugent and Sue Haslam

Respondents

INTERIM DECISION

Adjudicator: Jay Sengupta

Date: August 13, 2009

Citation: 2009 HRTO 1261

Indexed as: Lam v. Ontario Ombudsman

1On June 10, 2009, the applicant filed an Application under Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination in employment on the basis of race, place of origin and ethnic origin. The respondents dispute the applicant’s allegations and deny they have discriminated against her. The respondents seek to have the Application deferred pending the resolution of a grievance filed by the applicant’s union on her behalf.

2The respondents allege that the applicant’s union, Canadian Office & Professional Employees’ Union (“COPE”) Local 343, filed a grievance on her behalf, dated December 9, 2008. The respondents further allege that the Ontario Ombudsman was notified on March 2, 2009 that the matter was being referred to arbitration.

3The applicant has filed a Reply in which she has set out her opposition to the respondent’s request to defer. She states that the union has declined to pursue her claim through the grievance process and that she “currently has no grievance before the union”.

4Section 45 of the Code confirms the Tribunal’s authority to defer consideration of an application. Under Rule 14.1 of the Tribunal’s Rules of Procedure, the 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. Where the Tribunal intends to defer consideration of an application, it will first give the parties and any identified trade union or occupational or professional organization and any identified affected person, notice of its intention to consider deferral and an opportunity to make submissions (Rule 14.2).

5The Tribunal usually defers 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.

6The applicant has provided a reason why she feels that this Application should not be deferred. In the circumstances, before making a decision on deferral, the Tribunal will provide an opportunity to the respondent and COPE, Local 343 (as an affected party) to make further submissions on the issue of deferral, and to address her assertion that there is no ongoing grievance procedure. The applicant will be given an opportunity to respond to these submissions.

7The respondent and COPE, Local 343 are directed to deliver written submissions on the issue of deferral to the other parties, and file them with the Tribunal, by August 27, 2009.

8The Applicant may deliver a written response to the submissions on the issue of deferral to the other parties, and file them with the Tribunal, by September 3, 2009.

9I am not seized of this matter.