HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Carolyn Kibsey
Applicant
-and-
Carleton University
Respondent
INTERIM DECISION
Adjudicator: Eric Whist
Indexed as: Kibsey v. Carleton University
1This is an Application filed on March 9, 2010 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”). The Application alleges that the applicant was discriminated against in employment on the basis of disability. This Interim Decision deals with the respondent’s request that the Application be deferred pending the completion of a grievance proceeding.
2The respondent’s request to defer was made as part of its Response to the Application. In a letter dated July 14, 2010 the Tribunal invited the applicant and the applicant’s bargaining agent, the Canadian Union of Public Employees Local 2424 (the “Union”) to respond within 14 days to the respondent’s request. The Tribunal has not received submissions from the applicant or the Union as of the date of this Interim Decision.
3The 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 of the Tribunal’s Rules of Procedure). In each case, the Tribunal must consider, in light of the particular circumstances, whether deferral is the most fair, just and expeditious way of proceeding with the Application.
4The applicant’s grievance is dated September 6, 2009. It contends that the respondent violated her rights under the collective agreement for terminating her without just cause. According to the respondent, the grievance is scheduled for an arbitration hearing on September 14, 21 and 22, 2010.
5The Tribunal’s general practice is to defer Applications when there is an ongoing grievance under a collective agreement based on the same facts and issues raised in the Application. 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 as was affirmed by the Supreme Court of Canada (Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42).
6I have considered whether the grievance in this case is based on the same facts and issues as raised in the Application. On its face, the Application has a somewhat different focus than the grievance. The Application alleges that the applicant was subjected to discriminatory treatment during the course of her employment and in being fired. The grievance challenges whether the termination of the applicant’s employment was for just cause. However, given that the termination is central to both, there will undoubtedly be considerable overlap in the evidence called and, to some degree, the issues determined in each proceeding. This weighs in favour of deferral.
7Further, the arbitration hearing is also scheduled to take place shortly. In my view, to proceed with the Application at this time would be an inefficient and inappropriate use of the resources of the Tribunal and the parties. A deferral avoids the problem of two concurrent proceedings potentially making inconsistent findings of law or fact.
8Given the circumstances, the Application is deferred. The 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 process has been concluded.
9The Union has also filed a Request to Intervene, a request, I note, which was made prior to the respondent’s request to defer. The Tribunal will consider this Request if the Application is brought back after the grievance process is concluded.
10I am not seized of this matter.
Dated this 10th day of August, 2010
”signed by”____________ Eric Whist Vice-chair