Pamela Zuker v. City of Toronto and Mike Nickerson, 2010 HRTO 1538

Human Rights Tribunal of Ontario

B E T W E E N:

Pamela Zuker Applicant

-and-

City of Toronto and Mike Nickerson Respondents

INTERIM DECISION

Adjudicator: Judith Keene Date: July 15, 2010 Citation: 2010 HRTO 1538 Indexed as: Zuker v. Toronto (City)

1This is an Application filed on January 19, 2009 under section 34 of Part IV 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 and sexual harassment. This Interim Decision deals with a request for deferral from the respondents on the basis that the subject matter of the Application is the subject of a grievance that is in progress.

2The applicant’s materials acknowledge the existence and progress of the grievance, and the applicant indicated that her union was an interested party for the purposes of the Application.

3The applicant and her union representative were sent a copy of the Response, which includes the request for deferral, on May 28, 2010. The accompanying Registrar’s letter gave the opportunity for the applicant to reply within 14 days of May 28, 2010. The applicant did not file a Reply in accordance with the Tribunal’s direction. The Tribunal’s correspondence to the applicant was not returned.

4The 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.

5The 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).

6The 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, Tribunal’s normal approach is to defer to the other proceeding. See Blackman v. Ontario (Community Safety and Correctional Services), 2009 HRTO 970.

7The Tribunal directs the parties’ attention to Rules 14.3 and 14.4. These Rules outline the procedure by which the Application may be brought back before this Tribunal after the conclusion of the grievance process.

8I am not seized.