Pamela Yuen v. University of Toronto, 2010 HRTO 2243

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Pamela Yuen

Applicant

-and-

University of Toronto, Kenneth Mills, Davina Joseph, Jane Abray, Lori Loeb and Heather Black

Respondents

interiM DECISION

Adjudicator: Kathleen Martin

Date: November 10, 2010

Citation: 2010 HRTO 2243

Indexed as: Yuen v. University of Toronto

WRITTEN SUBMISSIONS BY

Pamela Yuen, Applicant ) Self-represented

University of Toronto, Kenneth Mills, )

Davina Joseph, Jane Abray, Lori Loeb ) Sari Springer, Counsel

and Heather Black, Respondents )

United Steel, Paper and Forestry, Rubber, )

Manufacturing, Energy, Allied Industrial and ) Robert Champagne,

Service Workers International Union (United ) Counsel

Steelworkers) and its Local Union 1998 )

ii

1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c.H.19, as amended (the “Code”), on August 25, 2010. This Interim Decision deals with the issue of whether the Application should be deferred pending the completion of a related grievance proceeding.

2The applicant alleges discrimination on the basis of race, colour, place of origin, ethnic origin, disability and age in employment as well as reprisal or threat of reprisal. Among other things, the applicant alleges that she was improperly laid off and that her employer, the University, failed to properly investigate a bullying and harassment complaint.

3The applicant states that the Application is part of another proceeding that is still in progress and refers to three grievances which she states have been referred to arbitration: grievance dated September 23, 2009 dealing with the failure to properly classify position; grievance dated September 17, 2009 alleging improper reorganization; and grievance dated April 22, 2010 alleging dissatisfaction with the outcome of the Civility guidelines complaint. Each of the grievances are broadly drafted and cite the violation of the collective agreement and all legislation.

4On September 24, 2010, the Tribunal sent out a Notice of Intent to Defer to the parties seeking submissions from the parties and the applicant’s union.

5On October 4, 2010, the applicant emailed the Tribunal. No submissions were provided although the applicant asked about whether the union’s decision to move forward with her grievances would affect the Tribunal’s Notice. The Tribunal responded by indicating that HRTO staff cannot provide legal advice or assist the applicant in this matter and referencing the Human Rights Legal Support Centre.

6On October 19, 2010, submissions were received from the respondents and on October 27, 2010, submissions were received from the applicant’s union. In both instances, the submissions support deferral. The submissions confirm that the grievances have been referred to arbitration and an agreement has been reached between the University and union to attempt mediation.

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 of each case. Absent good reason, applicants and respondents before the Tribunal are entitled to expect the Tribunal to take timely action to resolve complaints of discrimination brought before it.

8The 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).

9In this case, having regard to the submissions made and the material filed, deferral is appropriate. It is apparent that there is a substantial overlap between the grievances and the Application. The grievances have been referred to arbitration, and the union and the respondent employer have agreed to go to mediation. If the applicant believes, on conclusion of the grievance process, that her human rights issues have not been adequately addressed, she may ask to have her Application brought back on before the Tribunal.

10The Application will therefore be deferred pending the completion of the grievance process of the grievances identified in paragraph 3 above.

11The Tribunal directs the parties’ attention to Rules 14.3 and 14.4 which outline the procedure by which the Application may be brought back on after the conclusion of the grievance process. The other issues raised by the respondents will be dealt with by the Tribunal if the Application is brought back on.

12I am not seized of this matter.