Jastinder Manchanda v. Children’s Aid Society of Toronto and Rhona Delisle, 2009 HRTO 376

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jastinder Manchanda

Applicant

-and-

Children’s Aid Society of Toronto and Rhona Delisle

Respondents

INTERIM DECISION

Adjudicator: Kaye Joachim

Date: April 1, 2009

Citation: 2009 HRTO 376

Indexed as: Manchanda v. Children’s Aid Society of Toronto

1This Interim Decision relates to a Request by the respondents for early dismissal or deferral of the Application under section 45.1 and 45 of the Ontario Human Rights Code, R.S.O. 1990, c.H-19, as amended (the “Code”). This Interim Decision is based on the written submissions filed by the parties.

BACKGROUND

2The Application in this matter was filed on December 15, 2008 and relates to a complaint that had been filed with the Ontario Human Rights Commission on September 27, 2006 alleging that the applicant had experienced discrimination in employment because of race, ethnic origin, place of origin, colour, creed, accent and disability from January 2004 to the date of the complaint.

3The applicant is represented by the Canadian Union of Public Employees Local 3216 (“CUPE” or the “Union”).

4On September 18, 2006, the applicant submitted a written complaint to the corporate respondent alleging that the individual respondent Delisle had harassed her and discriminated against her based on race and place of origin/ethnic origin. On September 26, 2006, she also filed a human rights complaint. The corporate respondent arranged for an outside consulting firm to conduct an investigation. On March 20, 2007, the corporate respondent advised the applicant and the Union that the consultant had determined that the allegations of harassment and discrimination were unsubstantiated.

5On March 30, 2007, the applicant filed a grievance alleging discrimination and harassment. While the grievance form is devoid of details, the parties appear to agree that the basis of this grievance is similar to the matter raised by the applicant in her September 18, 2006 complaint and her human rights complaint. Neither party provided a copy of the original complaint, or the consultants’ report. On May 16, 2007, the Union withdrew this grievance.

6On August 17, 2007, the applicant filed a grievance alleging that the employer had improperly put her on sick leave. This grievance is outstanding and an arbitrator has been appointed to hear the grievance.

7There was an earlier grievance dated November 8, 2006 concerning a disciplinary letter issued against the applicant in July 2006. This grievance was subsequently settled on February 20, 2008 with the removal of the letter of discipline.

ANAYSIS

8Section 45.1 of the Code provides as follows:

The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.

9Section 45 of the Code provides that the Tribunal may defer an application.

10In the circumstances, I am not satisfied that the present Application should be dismissed or deferred at this stage.

11The applicant alleges that the November 6, 2006 grievance regarding the disciplinary letter does not overlap with the allegations of discrimination and harassment set out in the human rights complaint. The respondent asserts that the basis for the grievance is the applicant’s assertion that the discipline was an ongoing part of the alleged harassment and discrimination and has been settled. There is no evidence before me upon which I can conclude that the underlying complaint in this grievance was an assertion of discrimination and harassment. In any event, the minutes of settlement signed by the applicant do not preclude the applicant from continuing her outstanding human rights complaint. Indeed, paragraph 3 of the minutes of settlement specifically states:

It is understood and agreed that while this letter of discipline will be removed from her personnel file, it shall be nonetheless placed along with her complaint alleging discrimination and harassment which she has filed with the Ontario Human Commission, until the matter is resolved. It is further agreed that the Commission will be made aware that this letter is no longer on her personnel file and that her grievance has been settled.

12In my view, the terms of the settlement did not preclude the applicant from maintaining her outstanding human rights complaint, which forms the basis for the present Application. Whether they preclude her from alleging that the disputed discipline in July 2006 forms part of the pattern of harassment and discrimination from 2004 to 2006 would be better determined at the hearing on the merits.

13The March 30, 2007 grievance alleging harassment and discrimination was withdrawn by the Union on May 16, 2007. The applicant asserts that the Union withdrew the grievance because the Ontario Human Rights Commission was the more appropriate forum to deal with her allegations of discrimination. The respondents assert that the Union withdrew the grievance following receipt of the consultants’ report in April 2007 with the implication that the Union accepted the results of the investigation. There was no evidence before me from the Union why they unilaterally withdrew the grievance. In any event, there is no release from the applicant or any indication that the withdrawal by the Union indicated an agreement by the applicant to withdraw her human rights complaint.

14I reject the respondents’ submission that the filing and subsequent withdrawal of the harassment and discrimination grievance by the Union in the circumstances described above means that the substance of the Application has been appropriately dealt with: McCrea v Loblaw Companies, 2009 HRTO 17.

15I see no basis to defer the Application pending the resolution of the outstanding grievance dated August 17, 2007. That grievance relates to events which post-date the current Application and relate to the placement of the applicant on sick leave. There is no overlap between the Application, which relates primarily to allegations of race-based harassment and discrimination between 2004 and 2006 and the grievance, which relates to the placement of the applicant on sick leave. The only potential human rights issue raised by the grievance might relate to an alleged failure to accommodate in 2007.

16I note that although the applicant has focused on the race-based aspect of her Application, there are allegations of differential treatment which may amount to failure to accommodate a shoulder injury from September 2004 to June 2005. However, the time frame in question does not overlap with the ongoing grievance.

17In my view, the usual considerations which come to play in deferring an Application in light of a pending arbitration proceeding, such as the possibility of duplication of proceedings and inconsistent findings of facts do not arise in the circumstances here.

18The respondents’ Requests to defer or dismiss the Application are denied.