Carty v. Toronto (City), 2009 HRTO 1607

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Rhona Carty

Applicant

• and -

City of Toronto Children’s Services

Respondent

INTERIM DECISION

Adjudicator: Ena Chadha

Date: October 6, 2009

Citation: 2009 HRTO 1607

Indexed as: Carty v. Toronto (City)

1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on June 22, 2009, alleging discrimination and reprisal in employment on the basis of race, colour, ancestry, place of origin, ethnic origin and age.

2The respondent filed a Response, requesting that the Application be deferred because there are ongoing proceedings before another decision-maker or body which raise some or all of the same facts presented in the Application. The respondent submits that multiple grievances have been filed by the applicant which remain outstanding and pertain to the same facts underlying the Application.

3On September 17, 2009, the applicant’s union filed a Request to Intervene in this Application. The union takes the position that the facts giving rise to the grievances are the same facts as those that form the basis for the Application and that all the issues raised by the Application are covered in the applicant’s grievances. Accordingly, the union requests that the Tribunal defer the Application until the grievance arbitration process is completed.

4On September 21, 2009, the Tribunal sent a copy of the Response and a Notice of the respondent’s request to defer to the applicant and the applicant’s union. The Tribunal invited the applicant and the applicant’s union to file submissions in response to the respondent’s request for deferral.

5Although the applicant filed a response on September 29, 2009, it is unclear from her comments as to whether or not the applicant supports or objects to the request to defer. On October 2, 2009, the union filed a response confirming its support of the request for deferral.

DECISION

6The 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). Deferral 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.

7The Tribunal will generally defer an application where there is an ongoing grievance under a collective agreement based on the same facts and issues: see Krieger v. Toronto Police Services Board, 2008 HRTO 183, and Loranger v. Customs and Immigration Union, 2008 HRTO 432.

8In 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: see Blackman v. Ontario (Community Safety and Correctional Services), 2009 HRTO 970 citing Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42.

9The applicant has filed grievances alleging violations of the collective agreement and the Code pertaining to the same facts, allegations and issues as set out in this Application.

10In these circumstances, the Tribunal finds the most fair, just and expeditious approach is to defer consideration of this Application pending the conclusion of the grievance arbitration. The two proceedings raise similar facts and issues and involve the same parties. The grievance process is ongoing.

11The Tribunal orders that this Application be deferred pending the conclusion of the grievance arbitration process. The Tribunal directs the parties’ attention to Rules 14.3 and 14.4 which outline the process by which a party may request, in accordance with Rule 19, that the Tribunal proceed with an application after the conclusion of another process.

12At this time, there is no need to address the union’s Request to Intervene.

13I am not seized of this matter.