Wanda Thornton v. Toronto Police Services Board, 2009 HRTO 1980

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Wanda Thornton

Applicant

-and-

Toronto Police Services Board

Respondent

INTERIM DECISION

Adjudicator: David A. Wright

Date: November 20, 2009

Citation: 2009 HRTO 1980

Indexed as: Thornton v. Toronto Police Services Board

WRITTEN SUBMISSIONS BY

Wanda Thornton, Applicant ) Sheryl L. Johnson, Counsel

Toronto Police Services Board, Respondent ) Heather Crisp, Counsel

1This is an Application filed on April 23, 2009 under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”), alleging reprisal. This Interim Decision determines the respondent employer’s request that the Application be deferred pending the completion of an ongoing arbitration of a grievance filed by the Toronto Police Association (the “Association”) on behalf of the applicant.

THE GRIEVANCE AND TRIBUNAL APPLICATIONS

2This is one of several legal proceedings in which the applicant alleges a violation of the Code by the respondent. The Association filed a grievance dated July 31, 2006, which is currently before Arbitrator Louisa Davie. The grievance refers to various events in the 2½ years prior to the filing of the grievance that are alleged to constitute harassment and intimidation by her supervisor. Four days of hearing have been held. The Association sought to have the arbitration proceedings adjourned pending the Tribunal’s deferral decisions. This was opposed by the employer and denied by Arbitrator Davie in an unreported decision dated May 6, 2009.

3The applicant also filed a complaint with the Ontario Human Rights Commission, which formed the basis of an Application to the Tribunal under s. 53(3) of the Code, filed on December 31, 2008. In an Interim Decision, 2009 HRTO 980, the Tribunal held that it would be deferred pending the completion of arbitration proceedings. It found as follows, at para. 6:

In my view, in light of the overlapping factual matters and the stage of the arbitration proceedings, the factors favouring deferral of this Application outweigh the factors favouring the Tribunal proceeding with the Application. I realize that the arbitration proceeding may not address the post-June 2006 aspects of the Applications before the Tribunal, but the pre-June 2006 allegations should be dealt with first.

4The applicant also filed another Application to the Tribunal alleging discrimination in employment on the basis of disability. This Application was dismissed under s. 53(8) of the Code on the basis that it was substantially the same as a complaint that had previously been filed with the Commission: 2009 HRTO 1195.

THE REPRISAL APPLICATION

5This Application alleges reprisals contrary to s. 8 of the Code. The allegations are closely connected to underlying allegations of discrimination, harassment, and failure to accommodate on the basis of disability. Many of the allegations stem from the applicant’s objections to the ways in which her requests for accommodation were addressed, which she alleges constitute reprisals for asserting her Code rights.

6In addition, some of the allegations appear to flow from, or be related to, discussions of settlement at the applicant’s grievance arbitration hearing. Indeed, Arbitrator Davie noted as follows in her decision of May 6:

In particular the content of the reprisal application was of concern to all, including this arbitrator, because the reprisal complaint refers in detail to the confidential, without prejudice discussions which had taken place during the mediation on June 27, 2008.

REQUEST FOR DEFERRAL

7The respondent requests that the Application be deferred pending the conclusion of the arbitration process. It notes the overlap with the deferred s. 53(3) application, and the arbitrator’s jurisdiction to apply the Code. The applicant opposes deferral, noting that the grievance only covers the time period prior to the allegations raised in the Application. She also raises concerns about the time that the grievance arbitration process may take, noting that the parties have had difficulty getting dates and that there are only two dates scheduled in 2010. She states that it is her “expectation that her grievance will go into 2013 without the addition of the applicant’s reprisal application”.

8The Tribunal may defer consideration of an application, on such terms as it may determine, and on its own initiative (Rule 14.1). Deferral means that the matter will normally not be dealt with further by the Tribunal unless a party requests that it do so within 60 days following the completion of the other proceeding (Rule 14.4). 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. Deferral is not automatically invoked simply because the parties are involved in other legal proceedings.

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 all the circumstances, I find that deferral is appropriate. The facts and issues, while not the same, are closely related to those raised in the grievance and the deferred s. 53(3) Application. The factual and legal findings in the grievance will almost certainly have an impact on the analysis of the issues in this matter. As the Tribunal found in its decision on the s. 53(3) Application, the goal of avoiding duplicative factual and legal findings on issues that span all proceedings outweighs the other factors cited by the applicant.

11With regard to the time for the grievance arbitration process to conclude, I do not agree with the applicant that it is reasonable to assume that the arbitration proceedings will take as long as she suggests. It is common in labour arbitration for the parties to book one or only a few days at the outset, which may be used for mediation with the arbitrator. Blocks of days are usually scheduled for the later hearing dates and, in the case of a busy arbitrator, may not be available for some time. However, there is no reason to believe that it will take four years to book the necessary dates with Ms. Davie. In any event, this is not a factor that in this case outweighs the interest in avoiding duplication of proceedings that are intimately related to each other.

12The Application will therefore be deferred pending the completion of the grievance process.

13The Tribunal directs the parties’ attention to Rules 14.3 and 14.4 which outline the procedure by which the Application may be brought back on after the conclusion of the arbitration.

14I am not seized.