Paling v. Toronto Police Services Board, 2009 HRTO 331

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jill Paling

Applicant

-and-

Toronto Police Services Board, William Blair, Scott Weidmark, and Mary Shaw

Respondents

INTERIM DECISION

Adjudicator: Sheri D. Price

Date: March 20, 2009

Citation: 2009 HRTO 331

Indexed as: Paling v. Toronto Police Services Board

1This Application, filed December 2, 2008 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) alleges that the respondents discriminated against the applicant on the basis of race, disability, and sex in respect of employment and engaged in reprisals contrary to the Code. This Interim Decision addresses the respondent employer’s request that the Tribunal defer consideration of this Application pending the conclusion of a grievance which, it submits, raises some or all of the same facts and issues as the Application.

2The applicant, who is employed by the Toronto Police Services Board, alleges that some employees in her workplace made derogatory remarks about another employee related to his race and about the applicant related to her gender. The applicant alleges that, following her complaint about such remarks, the respondents engaged in reprisals against her, including assigning her the demeaning task of having her Unit’s car cleaned, preventing her from participating in a training course, and giving her a low promotional assessment score, thereby disqualifying her from proceeding in the promotional process. As a remedy, the applicant seeks a re-assessment of her promotional capacity by a neutral evaluator, sensitivity training for some of the organizational respondent’s staff and general and special damages.

3The Toronto Police Association filed a grievance on or about December 1, 2008 on the Applicant’s behalf which raises some or all of the same facts as the Application. Specifically, the grievance alleges that the respondent treated the applicant unfairly in giving her the promotional assessment score it did. As a remedy to the grievance, the Association seeks a declaration that the collective agreement was violated, a re-assessment of the applicant’s 2008 promotional candidacy by a neutral and fair evaluation committee, full compensation for any losses experienced by the applicant, and an order for such further relief as may be appropriate.

4The applicant objects to deferral of her Application on the basis that the grievance and arbitration procedure cannot deal with all of the matters raised in the Application. While seemingly acknowledging that arbitrators under the Police Services Act, R.S.O. 1990, c. P.15, as amended, have interpreted and applied the Code in deciding other grievances, the applicant submits that an arbitrator’s jurisdiction to apply the Code is not settled and that the jurisdiction of the arbitrator to award special damages is similarly uncertain. The applicant also opposes deferral on the basis that her grievance is currently at Step 2 of the grievance procedure and may not be referred to arbitration. If it is referred to arbitration, the applicant submits that the arbitration hearing could be delayed through the process of seeking the consensual appointment of an arbitrator and other factors. The applicant also cites her concern that she is vulnerable to future reprisal and intimidation by the respondents as a reason that the Tribunal should not defer to the grievance and arbitration procedure.

5The 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). 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. The purpose of deferring an application is to ensure that proceedings dealing with some or all of the same issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law.

6Some of the facts and issues raised by this Application are part of a grievance and arbitration process that is still in progress. Specifically, the allegation that the applicant’s low promotional assessment score was unfair and discriminatory is central to her Application and is also the subject-matter of a grievance filed on behalf of the applicant by her Association. Even if the grievance and arbitration procedure does not deal with the applicant’s allegations that the Code was violated (which it may), proceeding with the Application before the Tribunal while the grievance is outstanding nevertheless raises the possibility of inconsistent findings on facts common to the Application and the grievance. Further, the applicant has sought substantially similar remedies in the Application and in her grievance.

7The applicant’s concerns about possible future reprisals pending the hearing of her grievance are speculative in nature, and, in the absence of anything more, do not constitute sufficient reason for the Tribunal to depart from its normal approach of deferring to the grievance and arbitration process.

8Accordingly, the Tribunal orders the deferral of this Application pending the conclusion of the grievance and arbitration procedure 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 and arbitration process has concluded.

9I am not seized of this matter.