Elizabeth Laba v. The Corporation of the City of Windsor, Al Reaume and David Fields, 2009 HRTO 693

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Elizabeth Laba

Applicant

-and-

The Corporation of the City of Windsor, Al Reaume and David Fields

Respondents

INTERIM decision

Adjudicator: Brian Eyolfson

Date: May 26, 2009

Citation: 2009 HRTO 693

Indexed as: Laba v. Windsor (City)

WRITTEN SUBMISSIONS BY

Elizabeth Laba, Complainant ) Richard Miller, Counsel

The Corporation of the City of Windsor, )

Al Reaume and David Fields, ) Patrick T. Brode, Counsel

Respondents )

Windsor Professional Firefighters )

Association, Affected Party ) James A. Renaud, Counsel

INTRODUCTION

1This is an Application filed July 25, 2008, under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination in employment on the basis of sex (pregnancy) and family status. The applicant, a firefighter, also filed a Request for Order during Proceedings, requesting that the process be expedited.

2The respondents filed Responses agreeing that the process should be expedited, however, they also requested both dismissal and deferral of the Application as the applicant is a member of a union and had filed a grievance. All parties agreed to mediation.

3By Interim Decision, 2008 HRTO 84, the Tribunal indicated that mediation would be scheduled on an expedited basis and that the Tribunal would address the preliminary issues raised by the parties should the mediation not result in settlement. As the mediation did not result in settlement, the parties were asked to provide the Tribunal and each other with their positions on the preliminary issues they had raised. By letter dated February 10, 2009, the respondents submitted that “it would likely be appropriate to have the matter heard before the Tribunal, as that is the quickest possible resolution and the Tribunal can seize complete jurisdiction over the issues to the exclusion of the Board of Arbitration.” The respondents also advised that the grievance was still proceeding and that an arbitrator had been appointed and was canvassing dates for a hearing. The respondents did not address their earlier request for dismissal. By letter dated February 23, 2009, the applicant advised she was no longer seeking to have the matter expedited.

DEFERRAL

4Section 45 of the Code confirms the Tribunal’s authority to defer consideration of an application. Under Rule 14.1 of the Tribunal’s Rules of Procedure, the 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. Where the Tribunal intends to defer consideration of an Application, it will first give the parties, any identified trade union or occupational or professional organization and any identified affected persons, notice of its intention to consider deferral and an opportunity to make submissions (Rule 14.2).

5By Interim Decision, 2009 HRTO 382, the Tribunal invited the parties and the applicant’s union, the Windsor Professional Firefighters Association, to make written submissions regarding whether the Tribunal should defer consideration of this Application until such time as the grievance is resolved. The Corporation of the City of Windsor was also added as a respondent to the Application. The parties and the union have all provided submissions opposing deferral.

6The applicant submits that the Tribunal has greater expertise in adjudicating human rights issues than a labour arbitrator and that the Tribunal is also the more appropriate forum to effectively address the applicant’s request for a public interest remedy that would alter the respondents’ future practice and encourage compliance with the Code. At issue in both proceedings is whether the respondents failed in their duty to accommodate the applicant’s pregnancy and family status. The applicant submits that, an arbitrator, while capable of providing for similar remedies as available under the Code, does not have a comparable level of expertise in determining a suitable public interest remedy which requires specialized expertise and an understanding of the human rights issues that is only available through the Tribunal.

7The applicant also submits that, although the arbitration is currently scheduled to begin at the end of June, there is no indication that it will be completed within the two days scheduled and ultimately in a timely manner. The process to find and schedule additional dates for the arbitration could take months. Allowing the Application to proceed will permit the applicant to have a Tribunal hearing scheduled and increase the likelihood that her human rights issues will be dealt with as quickly and expeditiously as possible.

8The respondents adopt the submissions of the applicant and agree that deferral is not appropriate in this instance. The respondents submit that, in the circumstances of this case, involving allegations of refusal to accommodate arising out of a pregnancy in a fire service, there are important human rights issues raised which should be dealt with by the specialized body empowered to deal with such issues and that the remedies available before the Tribunal might well be more efficacious. The respondents submit that lengthy delays may result from arbitration and that the hearing before the Tribunal may be faster and more easily accommodated. They submit that arbitration is scheduled for the end of June but may well extend far beyond that date.

9The union submits that the grievance is scheduled for arbitration on June 25, and 26, 2009, but the likelihood that the hearing will be completed in two days is extremely low. The union submits that there will be a considerable number of days of hearing in this matter, document disclosure and perhaps other procedural issues, all of which will ensure that this matter will take some time to complete. When additional days are booked, they will depend upon the coordination of the schedules of all those involved and the chance of having the matter completed before the end of the year is unpredictable.

10The union also submits that it did not file a policy grievance, but an individual one directed solely at the applicant and any success at arbitration can rightfully be argued in the future to be of little precedential and/or educational value, unlike a Tribunal decision. The union submits that, while it is clear that an arbitrator has the power under subsection 48.12(j) of the Labour Relations Act, 1995, S.O. 1995, c. 1, Sched. A, to apply human rights legislation, it is not necessarily clear that the arbitrator’s mandate is to take on a broader public or policy based approach. The arbitrator, the union submits, will be restricted by the request under the grievance to making a decision that addresses the issues raised in the grievance. The union submits that the grievance is less broad and more specific and particular to the applicant than is the Application. Further, if the arbitrator’s decision is narrowly confined to the applicant, it will more likely than not be of limited value only to the applicant and not necessarily for any other firefighter who requires an accommodation during pregnancy. The union requests that the Tribunal carry on with its process and hear the matter as soon as possible.

DECISION

11The 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 decision on facts or law.

12While the Application contains more detail, the applicant’s grievance and Application appear to be based on the same facts and issues. In addition, arbitration is scheduled to commence on June 25, 2009, less than five weeks from now. While the parties and the union have expressed concern that it might be difficult to schedule additional hearing dates with the arbitrator, if necessary, I find this concern to be rather speculative. I am also not persuaded by the submissions of the parties and the union to the effect that the Tribunal is the more appropriate forum for determining human rights issues and appropriate public interest remedies. 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 Social Services Administration Board v. O.P.S.E.U., Local 342, 2003 SCC 42.

13The concerns raised by the parties and the union do not provide a sufficient basis for the Tribunal to depart from its usual approach. In the circumstances, the Tribunal orders the deferral of the Application pending the conclusion of the grievance and arbitration process.

14The 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.

15I am not seized of this matter.