Beker v. ACCES Employment, 2010 HRTO 471

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Mariam Beker

Applicant

-and-

ACCES Employment and Mia Toose

Respondents

INTERIM DECISION

Adjudicator: Sherry Liang

Date: March 2, 2010

Citation: 2010 HRTO 471

Indexed as: Beker v. ACCES Employment

1This is an Application filed on November 19, 2009 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the “Code”).

2This Interim Decision addresses with the deferral of the Application pending the completion of a grievance proceeding, and the continuation of the Application against the respondent Mia Toose.

3The applicant indicates in the Application that the facts of the Application are part of a union grievance proceeding that is still in progress, and encloses a copy of the grievance filed on her behalf by her union, the Ontario Public Service Employees Union (the “union”).

4The applicant and the corporate respondent agree to deferral of the Application pending the completion of that grievance proceeding.

5The 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. 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.

6The 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).

7The 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, the Tribunal’s normal approach is to defer to the other proceeding.

8In this case, it is apparent that there is substantial overlap between the facts and human rights issues covered by the Application and those referred to in the grievance. The Application will therefore be deferred pending the completion of the grievance process.

9The 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.

10If the Application is brought back on, the Tribunal will consider whether it can proceed against the individual respondent Mia Toose. It appears that the mailing address provided by the applicant is not accurate as this individual respondent is no longer in the country. The Tribunal draws the applicant’s attention to Rule 6.6 (a) and (b) of the Tribunal’s Rules of Procedure:

6.6 An Application accepted by the Tribunal for processing:

a) will be sent by the Tribunal to the Respondent(s), and to any trade union, occupational or professional organization identified in the Application, at the addresses provided in the Application; or

b) will not be dealt with in respect of a Respondent or a trade union, occupational or professional organization that cannot be contacted in accordance with paragraph (a) above, and the Applicant will be so advised; […].

11Previous decisions of the Tribunal in Guild v. Kyle-Jansen, 2008 HRTO 347 and Osman v. Elle Productions Security, 2009 HRTO 1426 have explained that it is the responsibility of the applicant to provide and in some cases confirm accurate contact information. If the applicant obtains contact information for this respondent, she should provide it to the Tribunal. If the Application is brought back on, and the Tribunal is not satisfied that it has a current, complete and accurate address for this respondent, it may decide not deal with the Application in respect of Mia Toose.

12The applicant’s request to add three individual respondents will be dealt with if the Application is brought back on.

13I am not seized of this matter.