Dixon v. Mississauga Transit, 2010 HRTO 1867

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Donna Dixon

Applicant

-and-

Mississauga Transit, Dara Marcoccia and Roy Kenealy

Respondents

INTERIM DECISION

Adjudicator: Michelle Flaherty

Date: September 13, 2010

Citation: 2010 HRTO 1867

Indexed as: Dixon v. Mississauga Transit

WRITTEN SUBMISSIONS BY

Donna Dixon, Applicant ) Cecil Norman, Representative

Mississauga Transit, Dara Marcoccia ) Casey M. Dockendorff, Counsel

and Roy Kenealy, Respondents )

1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”) in which she alleges discrimination on the basis of disability and sex in the context of employment.

2In essence, the Application alleges that the respondents unfairly terminated the applicant’s employment. The applicant was initially dismissed on October 15, 2008. Following a grievance filed by the Amalgamated Transit Union, Local 1572 (“Union”), the applicant was reinstated and signed a last chance agreement.

3The applicant’s employment was terminated a second time on October 2, 2009. As I understand it, the applicant alleges that the respondents’ decision to dismiss her did not fairly account for the stress-related health issues she experienced since entering into the last chance agreement.

4The applicant has also filed an application with the Ontario Labour Relations Board (“OLRB”) pursuant to s. 74 of the Labour Relations Act, 1995, S.O. 1995, c. 1, Sched. A, as amended. In essence, the OLRB application alleges that the Union failed in its duty of fair representation by refusing to file and/or pursue a grievance following the termination of the applicant’s employment in 2009.

5On August 17, 2010, the Tribunal administratively issued a Notice of Intent to Defer (Notice) indicating that it may be appropriate to defer consideration of the Application pending the resolution of the OLRB proceeding.

6The applicant and the respondents filed submissions in response to the Notice. The Union has not filed submissions and the time for doing so has elapsed.

DECISION

7The 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.

8Some 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.

9I accept that the s. 74 application at the OLRB and the Application involve overlapping facts: both proceedings relate to the applicant’s dismissal. However, in my view, this case is distinguishable from Toop v. Canadian Union of Public Employees, 2009 HRTO 2254, where the Tribunal deferred consideration of that application pending the conclusion of a number of proceedings, including a grievance and a s. 74 application before the OLRB.

10First, in Toop, the union was a named respondent and the Application contained allegations of discrimination in the context of union activities. In this case, however, the applicant does not name the Union as a respondent. The allegations in the Application relate to the former employer’s alleged conduct and do not directly concern the Union’s conduct. There is no allegation in the Application that the applicant was discriminated against by her Union.

11Second, in Toop, the Tribunal was influenced by the fact that there were multiple concurrent proceedings, including an ongoing grievance and a s. 74 application that had already been heard by the OLRB. In the case before me, the only concurrent matter is the s. 74 application before the OLRB and it is at an early stage.

12I conclude that it is not appropriate to defer consideration of the Application in the circumstances. While there is some factual overlap between the two proceedings, they raise different issues and involve different parties and different potential remedies.

13Within 35 days of receipt of this Interim Decision, the respondents are required to file a Response.

14I am not seized of this matter.