Wright v. Catholic Children’s Aid Society of Toronto, 2010 HRTO 125

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Sebrina Wright

Applicant

-and-

Catholic Children’s Aid Society of Toronto

Respondent

INTERIM DECISION

Adjudicator: Sheri D. Price

Date: January 19, 2010

Citation: 2010 HRTO 125

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

1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”) alleging that the respondent discriminated against the applicant on the basis of race and sex in respect of employment. Among other things, the applicant alleges that the respondent infringed her rights under the Code when it terminated her employment in July 2009.

DEFERRAL OF THE APPLICATION

2This Interim Decision addresses the respondent employer’s request that the Tribunal defer consideration of this Application pending the conclusion of the grievance and arbitration procedure in respect of a grievance which, it submits, raises some or all of the same facts and issues as the Application.

3The respondent submits that the applicant’s trade union, Canadian Union of Public Employees, Local 2190 (“CUPE”), filed a July 17, 2009 grievance on the applicant’s behalf alleging that the respondent violated the Code by terminating the applicant’s employment. The respondent submits that the grievance was referred to arbitration by CUPE pursuant to section 49 of the Labour Relations Act, 1995, S.O. 1995, c. 1, Sched. A, and that the arbitration hearing in respect of the grievance has commenced and is ongoing before the appointed arbitrator.

4In her Reply to the Response, the applicant opposes the respondent’s Request for deferral of the Application on the basis that the issues raised in the Application are different from those raised in the grievance. The applicant acknowledges that a grievance was filed alleging the unjust termination of her employment, that it was referred to arbitration, and that the arbitration hearing is ongoing. However, the applicant submits that the grievance addresses whether the termination of the applicant’s employment was without cause under the collective agreement which is different from the allegations of discrimination on the basis of sex and race advanced in her Application.

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.

6Deferral of an Application seeks to ensure that proceedings dealing with the same facts or issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law. Some 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: Klein v. Toronto Zionist Council, 2008 HRTO 189.

7Some of the facts and issues raised in this Application are part of a grievance and arbitration process that is still in progress. A key allegation in the Application is that the respondent’s termination of the applicant’s employment violated the applicant’s rights under the Code. The alleged unjustness of the applicant’s termination is also subject to a grievance which has been referred to arbitration. Although the issues raised in the grievance may not be identical in nature or scope to those raised in the Application, there is significant overlap in that the alleged unjustness of the applicant’s termination is central to both the grievance and the Application. Further, there is significant overlap in the remedies sought by the applicant in the Application and in her grievance; the applicant seeks reinstatement to employment in both.

8Since the issues in the Application and the grievances overlap significantly, proceeding with the Application at the Tribunal could very possibly lead to inconsistent decisions on the facts and/or legal issues raised in the Application and the grievances. The primary purpose of deferring an Application is to avoid such potential inconsistency. I find that, in all of the circumstances, deferring the Application is appropriate.

9The parties’ attention is drawn to Rules 14.3 and 14.4 of the Tribunal’s Rules of Procedure which address how the Application may be brought back on before the Tribunal, following conclusion of the grievance and arbitration procedure. The Rules of Procedure are available on the Tribunal’s website, www.hrto.ca under “New Applications”.

REQUEST TO DISMISS

10In its Response, the respondent requests that the Tribunal dismiss the Application on the basis that another proceeding has appropriately dealt with the substance of the Application, pursuant to s. 45.1 of the Code. However, since it is clear from the Response that the other proceeding identified, namely the arbitration hearing in respect of the applicant’s July 2009 discharge grievance, has not been concluded, it is clear that the other proceeding cannot be said to have appropriately dealt with the Application, at this point. If and when the arbitration hearing is completed, and if and when any party seeks to bring the Application back on before the Tribunal in accordance with Rule 14 of the Tribunal’s Rules of Procedure, the respondent may pursue its Request under s. 45.1 of the Code at that time.

REQUEST TO INTERVENE

11There is an outstanding Request to Intervene in this proceeding by the applicant’s trade union. The Tribunal will address the Request when and if this Application is brought back on before the Tribunal.

REQUEST TO AMEND APPLICATION

12There is an outstanding Request from the applicant to Amend the Application to add certain allegations to her Application. The respondent opposes the Request. The Tribunal will determine the Request if and when this Application is brought back on before the Tribunal.

13I am not seized of this matter.