Jasmin Whittle-Wilson v. City of Toronto Home for the Aged and Patty Burke, 2010 HRTO 1504

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jasmin Whittle-Wilson

Applicant

-and-

City of Toronto Home for the Aged and Patty Burke

Respondents

INTERIM DECISION

Adjudicator: Ken Bhattacharjee

Date: July 12, 2010

Citation: 2010 HRTO 1504

Indexed as: Whittle-Wilson v. Toronto (City) Home for the Aged

WRITTEN SUBMISSIONS BY

Jasmin Whittle-Wilson, Applicant ) Louis Mostyn, Counsel

ii

1The purpose of this Interim Decision is to direct the respondents to file a Response to the Application, and to request further submissions on whether the Application should be deferred pending the completion of a related grievance proceeding.

2The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on February 3, 2010, which alleged that the respondents harassed and discriminated against her because of her colour and a record of offences, and subjected her to reprisal for claiming her rights under the Code, all with respect to employment.

3In section 14 of the Application, the applicant acknowledged that the facts of the Application are part of a union grievance proceeding that is still in progress, but did not request that the Tribunal defer her Application until the grievance proceeding is completed. She attached a letter dated November 26, 2009 from her union (Canadian Union of Public Employees, Local 79), which advised her that a Step 2 meeting was scheduled for December 15, 2009 to hear her grievance. She also attached a letter dated January 4, 2010 from a law firm to her union, which provided a legal opinion about some of the incidents mentioned in her Application.

4On June 2, 2010, the Tribunal’s Registrar sent the parties and the applicant’s union a letter, which requested written submissions on the issue of deferral within two weeks.

5The applicant’s counsel filed submissions on June 15, 2010, which stated that the applicant “filed a Grievance which took place in September 2009,” but she has not heard back from the union since that time. The submissions also stated that the applicant spoke with a union representative who advised her that she could not do anything, and that the applicant should “seek out a lawyer or go to Human Rights.”

6Neither the respondents nor the union filed submissions in response to the Registrar’s letter.

7Section 45 of the Code provides that the Tribunal may defer an Application in accordance with the Tribunal’s Rules of Procedure. Rule 14.1 of the Tribunal’s Rules provides that 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. The Tribunal will 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.

8In Baghdasserians v. 674469 Ontario, 2008 HRTO 404, the Tribunal made the following general comments about deferral at paras. 18-19:

Deferral of an application ensures that proceedings dealing with the same issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law. However, deferral is not automatically invoked simply because the parties are involved in other legal proceedings.

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.

9In my view, given the fact that the applicant’s counsel made submissions that contradict the letters that she attached to her Application, and neither the respondents nor the union filed submissions, there is insufficient information to determine the deferral issue at this stage of the proceeding.

10The respondents are directed to file a Response to the Application within 35 days of the date of this Interim Decision, and address the issue of deferral. The applicant is directed to further address the deferral issue in her Reply to the Response. The union is directed to file submissions on the deferral issue no later than 10 days after receiving the applicant’s Reply.

11I am not seized of this matter.