Popik v. Toronto (City), 2010 HRTO 1191

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Valentina Popik

Applicant

-and-

City of Toronto, Bea Harrison and Bill Buckingham

Respondents

INTERIM DECISION

Adjudicator: Naomi Overend

Date: May 26, 2010

Citation: 2010 HRTO 1191

Indexed as: Popik v. Toronto (City)

1This Application was filed on January 6, 2010 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”). This Interim Decision deals with the issue of whether the Application should be deferred pending the completion of related grievance proceedings.

2The applicant indicates in her Application that the facts of the Application are part of a union grievance proceeding that is still in progress. She enclosed a copy of the grievance filed on her behalf by her union, CUPE Local 79.

3In their Response, the respondents note that the applicant, in fact, has six outstanding grievances, two of which “mirror the subject matter of the Application.” The respondents further assert “all of these grievances are currently scheduled to be heard at a Step 2 meeting in accordance with the grievance procedure in May, 2010.” The respondents specifically request that this Application be deferred in their Response.

4The applicant was served with a Delivery of Response and Notice of Respondent’s Request to Defer on April 27, 2010. This document contains the following paragraph:

Please note the Respondent has asked the Tribunal to defer the Application on the grounds that there is an ongoing proceeding before another decision-maker or body which raises some or all of the same facts and issues presented in this file.

5The applicant was advised to submit her Reply to the Response by “not later than fourteen (14) days after April 27, 2010.” No Reply has been received by the Tribunal, and the time for filing has now elapsed.

6The 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. Absent good reason, applicants and respondents before the Tribunal are entitled to expect the Tribunal to take timely action to resolve complaints of discrimination brought before it.

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).

8The Supreme Court thus confirmed that human rights tribunals are not the only decision-makers that can decide human rights claims. Where the parties are already engaged in a concurrent legal proceeding in which they are raising the same human rights issues before a decision-making body with the authority to make determinations about those issues, the orderly administration of justice favours deferral to the other proceeding. In such a scenario, the Tribunal’s normal approach is to defer to the other proceeding.

9In this case, the applicant filed two grievances on May 20, 2009, one of which alleged the City had failed to accommodate her disabilities, and the other of which alleged that the City had failed to maintain a harassment and discrimination free workplace. The allegations in the Application also deal with the City’s perceived failure to accommodate the applicant’s disability. The applicant concludes her recitation of the facts in her Application with the statement that the City failed “to provide workplace accommodation as required under the City of Toronto Human Rights and Anti-Harassment Policy.”

10There appears to be a substantial overlap between the grievances and the Application. The applicant has made no argument opposing the respondents’ deferral request and, thus, the only information before the Tribunal is that the fair, just and expeditious manner of addressing this overlap is to defer consideration of the Application.

11The Application will therefore be deferred pending the completion of the grievance process. The 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 grievance process.