Evaggelou v. Maple Leaf Sports & Entertainment Ltd., 2009 HRTO 1939

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Gena Evaggelou

Applicant

-and-

Maple Leaf Sports & Entertainment Ltd. and Brendan Costigan

Respondents

INTERIM DECISION

Adjudicator: Kathleen Martin

Date: November 17, 2009

Citation: 2009 HRTO 1939

Indexed as: Evaggelou v. Maple Leaf Sports & Entertainment

1This is an Application filed on June 2, 2009 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”). This Interim Decision addresses a request by the respondents and the applicant’s union to defer the Application pending the conclusion of union grievances.

BACKGROUND

2The Application arises out of the applicant’s employment and termination of her employment on two separate occasions with the organization respondent. The applicant alleges that during her employment, she was sexually harassed by the individual respondent, a director of the organization respondent. On February 21, 2008, the applicant was terminated from her employment and a grievance was filed by her union, Teamsters Local Union 847. The applicant was subsequently reinstated to her employment following mediation of a termination grievance between the organization respondent and the applicant’s union, although the issue of remedy remained outstanding.

3The applicant alleges that her initial termination and the subsequent punitive actions taken upon her return to work (including that she was improperly assigned to a different work area) were directly related to her earlier complaints about the inappropriate behaviour of the individual respondent. The applicant further alleges that she made further complaints about the individual respondent in the fall of 2008. The organization respondent investigated those complaints and subsequently terminated her again on February 21, 2008 because it was concluded that her complaint had been malicious. The applicant alleges that this termination was also contrary to the Code.

4The applicant acknowledges that the Application is part of a union grievance that is still in progress. However, the applicant states that she is not seeking deferral since although a grievance was filed “…the union acquiesced to the companies demands that I not be reinstated and the issue of sexual harassment was disregarded as immaterial to the remainder of the proceedings.” It is unclear which of the two grievances the applicant is referencing.

5The applicant’s union has filed a Request to Intervene. The union requests deferral of the Application pending the resolution of the two outstanding unjust termination grievances. The union notes that both grievances have been referred to arbitration. Based on the union’s submissions, it is apparent that the arbitration into each grievance has commenced, although the parties have since agreed to proceed with the issues presently before the arbitrator hearing the remedial issues from the first termination grievance before proceeding further with the second termination grievance.

6The Response requests deferral of the Application, because the facts are part of a union grievance that is still in process. Attached to the Response is a copy of the December 1, 2008 termination letter and the subsequent grievance. The termination letter references the applicant’s interactions with the individual respondent in 2006 and 2008 which appear to be referred to in the Application.

7The Tribunal requested that the applicant respond to the request for deferral in her Reply. The applicant continues to oppose deferral. Among other things, the applicant submits that the Application seeks general damages, which has not been claimed at any other time (presumably referring to her outstanding grievances). The applicant also expresses dissatisfaction with the timing of the processing of her grievances and states that the numerous delays are causing her undue stress. She states that the first termination grievance has been re-scheduled on several occasions although she acknowledges that it is presently scheduled to resume on January 7 and 12, 2010.

DECISION

8The Tribunal may defer consideration of an application, on such terms as it may determine, and on its own initiative (Rule 14.1). The Tribunal has stated that deferral is not automatically invoked simply because the parties are involved in other legal proceedings. It is a discretionary measure that the Tribunal exercises on the basis of the circumstances in each case. The Tribunal has stated that absent good reason, applicants and respondents before it are entitled to expect the Tribunal to take timely action to resolve complaints of discrimination brought before it.

9The Tribunal has generally deferred applications where there is an ongoing grievance under a collective agreement based on the same facts and human rights issues. In 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 (Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42).

10In addition, the Tribunal has deferred an application where there is another proceeding which is based on the same or similar factual circumstances notwithstanding that the same human rights issues are not engaged. In considering whether deferral is appropriate in these circumstances, the Tribunal has had regard to the subject matter of the other proceeding, the nature and type of remedies available, the status of the other proceeding and the steps taken to pursue it.

11The Tribunal finds it appropriate to defer this Application pending the completion of the grievance process in respect of each termination grievance.

12Both grievances address a central issue in the Application before me, namely, the applicant’s termination from her employment on February 21, 2008 and on December 1, 2008. While it does not appear that the facts and issues are identical (for example, the second termination grievance on its face does not claim general damages), there is considerable factual overlap between the two grievances and the Application. Further, both grievances are at arbitration. While it is apparent that the parties to that process have decided to complete the first arbitration before reconvening the second arbitration, I do not find that this provides a sufficient basis for the Tribunal to proceed with an Application involving significant factual overlay. Instead I find that the factual overlap between the two arbitration proceedings and the Application, the potential for arbitrations to determine some of the issues in this Application, the proximity of the hearing dates for one of the grievances and the fact that the other arbitration hearing has been commenced, are all factors that favour the deferral of the Application.

13The 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 grievances have been concluded.

14I am not seized of this matter.