Teske v. Canadian Union of Public Employees, 2009 HRTO 1480

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Marlene Teske

Applicant

-and-

Canadian Union of Public Employees, Local 4685

Respondent

AND B E T W E E N:

Marlene Teske

Applicant

-and-

F.J. Davey Home

Respondent

INTERIM DECISION

Adjudicator: David Muir

Date: September 15, 2009

Citation: 2009 HRTO 1480

Indexed as: Teske v. Canadian Union of Public Employees

WRITTEN SUBMISSIONS BY

Marlene Teske, Applicant ) Ernest J. Guiste, ) Counsel

Canadian Union of Public Employees, ) Prasanna Balasundaram, Local 4685, Respondent ) Counsel

F.J. Davey Home, Respondent ) Malcolm N. Winter, ) Counsel

1These are two Applications filed on October 16, 2008 under section 53(3) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Applications are summarised below:

T-0361-08: The applicant is Marlene Teske, a former employee of F.J. Davey Home (the respondent in T-0362-08). The respondent is the applicant’s bargaining agent, the Canadian Union of Public Employees, Local 4685 (“CUPE”). The applicant alleges that she was discriminated against in services on the basis of age and disability.

T-0362-08: The respondent is the applicant’s former employer, F.J. Davey Home (the “Home”). The applicant alleges that she was discriminated against in employment on the basis of age and disability.

2The Home argues that the Tribunal does not have jurisdiction to deal with this Application because the complaint upon which the Application is based was dismissed by the Commission on July 7, 2007 and the applicant did not file a timely request for reconsideration. CUPE filed a Request for Order During Proceeding requesting the dismissal or in the alternative a deferral of the Application pending an arbitration in respect of a grievance of Ms. Teske. Ms. Teske appears to have provided submissions with respect to both respondents’ Requests.

3This Interim Decision is based upon the written submissions filed by the parties.

Decision

Is the complaint as against the Home a continued complaint?

4Based on the documentation filed by the Home, it appears that the Commission had made a decision not to proceed further with the complaint on July 7, 2007. There is no evidence and the applicant does not allege that she requested a reconsideration of that decision. Accordingly, the complaint is not “continued” within the meaning of section 53 of the Code which provides:

(1) This section applies to a complaint filed with the Commission under subsection 32 (1) of the old Part IV or initiated by the Commission under subsection 32 (2) of the old Part IV before the effective date.

(2) Subject to subsection (3) and despite the repeal of the old Part IV, during the six-month period that begins on the effective date, the Commission shall continue to deal with complaints referred to in subsection (1) in accordance with subsection 32 (3) and sections 33, 34, 36, 37 and 43 of the old Part IV and, for that purpose,

(a) the Commission has all the powers described in subsection 32 (3) and sections 33, 34, 36, 37 and 43 of the old Part IV; and

(b) the provisions referred to in clause (a) continue to apply with respect to the complaints, with necessary modifications.

(3) Subject to subsection (4), at any time during the six-month period referred to in subsection (2), the person who made a complaint that is continued under that subsection may, in accordance with the Tribunal rules, elect to abandon the complaint and make an application to the Tribunal with respect to the subject-matter of the complaint. (emphasis added).

5The applicant states that it is not for the Tribunal to dismiss complaints which plead material facts within its jurisdiction based on what went on before another tribunal. In these circumstances I do not agree. The Tribunal’s jurisdiction over a section 53(5) Application requires that the complaint be a continued complaint. Based on the material filed by the respondent and not challenged by the applicant. it is clear that the complaint was not continued when the applicant purported to transfer it to the Tribunal. Accordingly, I find that the Tribunal has no jurisdiction to consider the Application in T-0362-08 and it is dismissed.

Should Application T-0361-08 be dismissed or deferred?

6CUPE states that this Application should be dismissed for the following reasons:

1. The applicant has not made out a prima facie case.

2. The applicant’s concerns are more appropriately dealt with through the grievance procedure or at the Ontario Labour Relations Board.

7In the alternative CUPE states that the Application should be deferred until the grievance arbitration commenced by CUPE on behalf of the applicant regarding her termination is concluded.

8The Application is not dismissed at this stage on the basis that it discloses no prima facie case or that it should be dealt with under the provisions of the Labour Relations Act. The Application is not dismissed, but deferred pending the outcome of an ongoing labour arbitration.

9The essence of the complaint as it relates to CUPE is an allegation that, by its initial failure to file a grievance in respect of her termination, it has participated in the discrimination by the Home and that, if the applicant participates in the grievance process, CUPE will withdraw it.

10Deferral of an application ensures that proceedings dealing with the same issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law.

11While deferral is not automatically invoked simply because the parties are involved in other legal proceedings, it is not a requirement for deferral that the other legal proceeding be dealing with precisely the same issues as are raised in the human rights application. Rather, the fundamental question for this Tribunal is whether or not it is fair, just or expeditious to defer an application.

12Some of the factors that may be relevant in deciding whether to defer consideration of an application before the Tribunal are 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 overall to the parties to defer, having regard to the status of each proceeding and the steps that have been taken to pursue them.

13The applicant opposes the request for deferral in large part because she has lost faith in her bargaining agent and asserts that there is a genuine concern with the quality of representation the applicant will receive in the arbitration process. Whatever the merits of these submissions, the fact remains that there is a grievance arbitration ongoing in respect of the termination of the applicant’s employment. It is the forum in which the Home is a party and where the remedy of reinstatement remains available. Dates for an arbitration hearing were set in June 2009, and adjourned at the request of the applicant. The respondents have advised that they are seeking new dates from the arbitrator in November 2009.

14In these circumstances, I find the most fair, just and expeditious approach is to defer consideration of Application T-0361-08 pending the conclusion of the grievance arbitration. The two proceedings arise out of the identical allegation – that the applicant was terminated contrary to the Code (and the collective agreement). They raise some or all of the same issues. The arbitration will likely be concluded later this year.

15If the applicant intends to proceed with this Application following the conclusion of the arbitration, the applicant is directed to contact the Registrar – Transition no later than 60 days after the conclusion of the arbitration proceeding to make a request to proceed, and shall indicate the date the arbitration concluded and include a copy of the award of the arbitrator.

16I am not seized of this matter.