Whittle-Wilson v. Toronto (City), 2010 HRTO 2320

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jasmin Whittle-Wilson

Applicant

-and-

City of Toronto and Patricia Burke

Respondents

INTERIM DECISION

Adjudicator: Ken Bhattacharjee

Date: November 22, 2010

Citation: 2010 HRTO 2320

Indexed as: Whittle-Wilson v. Toronto (City)

WRITTEN SUBMISSIONS BY

Jasmin Whittle-Wilson, Applicant ) Louis Mostyn, Counsel

City of Toronto and Patricia Burke, ) Omo Akintan, Counsel Respondents )

Canadian Union of Public Employees, ) J. James Nyman, Counsel Local 79 )

ii

1The purpose of this Interim Decision is to decide whether the Tribunal should defer consideration of the Application pending the conclusion of a 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 consideration of her Application until the grievance proceeding is completed. She attached a letter dated November 26, 2009 from the Canadian Union of Public Employees, Local 79 (“Union”), which advised her that a Step 2 meeting was scheduled for December 15, 2009 to hear her grievance.

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, 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 the Union could not do anything, and that the applicant should “seek out a lawyer or go to Human Rights.” The submissions contradicted the Application, which indicated that a Step 2 meeting took place on December 15, 2009 to hear the applicant’s grievance.

6Neither the respondents nor the Union filed submissions.

7In an Interim Decision, 2010 HRTO 1504, the Tribunal directed the respondents to file a Response to the Application, and address the issue of deferral. The Tribunal also directed the applicant to further address the deferral issue in her Reply to the Response, and the Union to file submissions on the deferral issue after receiving the applicant’s Reply.

8The respondents and the Union both filed submissions, which stated that the facts of the Application are part of a union grievance that is still in progress. The respondents attached a copy of the applicant’s grievance dated October 27, 2009, which alleged that the organization respondent violated the Collective Agreement by not maintaining a harassment and discrimination free workplace, and requested compensation for all losses sustained. The respondents also attached a copy of a letter dated July 7, 2010, which denied the applicant’s grievance. The Union stated that it was advancing the grievance to Step 3 of the grievance process. The respondents and the Union both requested that the Tribunal defer consideration of the Application pending the conclusion of the grievance proceeding.

9The applicant’s counsel filed a Reply to the Response, but did not explicitly address the deferral issue.

10Section 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.

11In 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.

12The Supreme Court of Canada has confirmed that human rights tribunals are not the only decision-makers that can decide human rights claims: Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42. 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, the Tribunal’s normal approach is to defer to the other proceeding: Tekes v. Markham (Town), 2009 HRTO 1665 at para. 7.

13In my view, deferral is the most fair, just and expeditious way of proceeding with the Application. There is an ongoing grievance process, which was started before the filing of this Application, and there is a clear overlap between the facts, issues and remedies raised in the grievance and those raised in this Application. Furthermore, if the grievance is referred to arbitration, the labour arbitrator will have the authority to interpret and apply the Code to address any allegations of harassment, discrimination and reprisal.

14None of the parties have identified any particular circumstance which would cause the Tribunal to depart from its normal approach. Accordingly, the Tribunal orders the deferral of the Application pending the conclusion of the grievance proceeding.

15I am not seized of this matter.