Wendy Besner v. Hydro One Networks Inc., 2009 HRTO 1699

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Wendy Besner

Applicant

-and-

Hydro One Networks Inc., Kyle McMahon, Shawn Delendardo and Wayne Campbell

Respondents

INTERIM DECISION

Adjudicator: Sheri D. Price

Date: October 16, 2009

Citation: 2009 HRTO 1699

Indexed as: Besner v. Hydro One Networks

1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”) alleging that the respondents discriminated against and harassed the applicant on the basis of sex in respect of employment. This Interim Decision addresses the respondents’ request that the Tribunal defer consideration of this Application pending the conclusion of the grievance and arbitration procedure in respect of a grievance which, they submit, raises some or all of the same facts and issues as the Application.

2The applicant’s trade union, the Power Workers’ Union, Canadian Union of Public Employees, Local 100 (“PWU”), filed a grievance against the respondent employer, Hydro One Networks Inc., on or about March 23, 2009 alleging, among other things, that the respondent had violated the Code by “engag[ing] in or permitt[ing] sexual harassment” and discrimination on the basis of sex and disability against the applicant. The facts and issues raised in the Application are also raised in the grievance.

3The respondents assert that the grievance was referred to mediation-arbitration in late April 2009, but the hearing was adjourned on consent and is scheduled to reconvene in October 2009.

4The 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. 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.

5The Tribunal notified the applicant of the respondents’ Request to Defer and provided her with an opportunity to make submissions in response to the Request. The applicant did not make any such submissions.

6The facts and issues raised by this Application are part of a grievance process that is still in progress and the applicant has not identified any circumstances that would cause the Tribunal to depart from its normal approach of deferring the Application, pending the conclusion of the grievance and arbitration procedure.

7In these circumstances, deferral is appropriate. The Tribunal orders the deferral of this Application pending the conclusion of the arbitration hearing in respect of the applicant’s grievance. The Tribunal directs the parties’ attention to Rules 14.3 and 14.4 which outline the process by which the Application may be brought back on after the grievance arbitration has been concluded.

8There is an outstanding Request to Intervene in this proceeding by the applicant’s trade union. The Tribunal will address the Request when and if this Application is brought back on before the Tribunal.

9I am not seized of this matter.