HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Sheryl Toop Applicant
-and-
Canadian Union of Public Employees, CUPE Ontario, CUPE Local 1974, Raven, Cameron, Ballentyne & Yazbeck LLP, Board of Governors of Kingston General Hospital, Paul Moist, Nancy Rosenberg, Patrick (Sid) Ryan, Candace Rennick, Barbara Williams, Linda Thurston-Neeley, Louis Rodrigues, Ken Bethune, Mitchell Vivian, Susan Ballantyne, John Cox, Janet Roseblade, Micki Mulima and Bill Hunter Respondents
INTERIM DECISION
Adjudicator: David A. Wright Date: December 29, 2009 Citation: 2009 HRTO 2254 Indexed as: Toop v. Canadian Union of Public Employees
1This Interim Decision determines whether this Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19 (the “Code”), should be deferred pending the conclusion of related proceedings in the courts, before an arbitrator and at the Ontario Labour Relations Board. The Application alleges discrimination on the basis of disability, sex, marital status, and association with a person identified by a ground in the Code. The respondents are the applicant’s former employer, Kingston General Hospital (the “employer”), her union, the Canadian Union of Public Employees, Local 1974 (the “local”) and related union entities, the law firm that represents the local, and various employees of these entities. The Application makes allegations, among others, of discrimination in union activities, harassment in the workplace and in union activities, and discipline and dismissal by the employer contrary to the Code.
2There are currently various proceedings ongoing that are related to this Application. First, and most important, the applicant has filed a grievance against the employer through the union contesting her termination. Second, she has filed three applications against the union with the Ontario Labour Relations Board (“OLRB”): one under s. 74 of the Labour Relations Act, 1995, S.O. 1995, c. 1, sched. A (“LRA”) alleging a breach of the duty of fair representation for failure to refer an earlier discipline grievance to arbitration, another under s. 87 of the LRA regarding alleged reprisals, and a third under s. 92 of the LRA regarding the local’s financial statements. The first has been heard and is awaiting a decision and the third is adjourned pending disclosure. Third, various members of the local executive commenced a defamation action against the applicant and others in the Superior Court of Justice. The applicant filed a Statement of Defence and Counterclaim in which she alleges civil conspiracy and abuse of process by the members of the local executive.
3The Tribunal issued a Notice of Intent to Defer on December 3, 2009 pursuant to Rule 14 of the Tribunal’s Rules of Procedure and sought the parties’ submissions. The respondents all support deferral, and the applicant opposes deferral. The applicant argues that while the facts may be similar, either the legal issues being determined or the remedy being sought is different in each of the other proceedings. She states that delay in the Tribunal’s process and in obtaining the remedies available from the Tribunal will compound the harm she has experienced as a result of the alleged discrimination.
DECISION
4I have determined that the Application should be deferred pending the conclusion of the grievance process, the s. 74 and s. 87 applications at the OLRB.
5The 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.
6Some 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.
7The 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). The outstanding grievance, like the Application, deals with the applicant’s dismissal from employment and the arbitrator can and must apply the Code in resolving it. It is therefore evident that the Application should be deferred pending the conclusion of the grievance.
8The s. 74 and s. 87 applications at the OLRB involve many overlapping facts with the Application. In light of this and the many proceedings already underway involving these parties, the wide remedies available to the OLRB, the significant labour relations aspects to the Application against the union respondents, the prohibition on discrimination in s. 74 of the LRA (see Dunn v. Sault Ste. Marie (City), 2008 HRTO 149 at para. 29) and the fact that the s. 74 application has already been heard, I find that the Application should be deferred pending the conclusion of those proceedings also.
9In view of this determination, I need not consider the effect of the civil proceeding at this time. If it remains outstanding when the other proceedings have concluded, the issue of deferral may be revisited at that time. In my view, the s. 92 application at the OLRB should not affect the Tribunal’s proceedings as it relates only to the local’s financial statements.
10Accordingly, this Application will be deferred pending the conclusion of all of the applicant’s grievance, the s. 74 and s. 87 proceedings at the OLRB. The Tribunal directs the parties’ attention to Rules 14.3 and 14.4 which outline the procedure by which a party may ask that the Application proceed. A request to proceed must be filed no later than 60 days after all of the above three proceedings have concluded.
11In light of this determination, the respondents need not file a Response to the Application unless directed to do so following a decision on a request to re-activate the Application.
12I am not seized.
Dated at Toronto, this 29^th^ day of December, 2009.
“Signed By”
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David A. Wright Interim Chair