Mewsha Samuels v. Kingdom Hotels Limited o/a Four Seasons Hotel Toronto and Mary Sardella, 2010 HRTO 493

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Mewsha Samuels

Applicant

-and-

Kingdom Hotels Limited o/a Four Seasons Hotel Toronto

and Mary Sardella

Respondents

interiM DECISION

Adjudicator: Alison Renton

Date: March 4, 2010

Citation: 2010 HRTO 493

Indexed as: Samuels v. Kingdom Hotels

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 May 20, 2009. 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, disability, creed, sex and reprisal in employment. She provided a 15 page narrative in which she, amongst other things, set out allegations of alleged discrimination and harassment from 2003 to September 2008 when she went off work for medical reasons. The applicant identifies that she is a member of the United Food and Commercial Workers International Union, Local 333 (“the union”).

3The Tribunal sent the Application to the respondents and the union. The union has not communicated with the Tribunal. The respondents filed a joint Response and request that the Tribunal defer the Application because of 17 grievances filed by the union on the applicant’s behalf between April 24, 2007 and November 2, 2008. The respondents submit that the grievances, which were appended to their Response, allege harassment, discrimination, poisoned work environment and breaches of the Code. The respondents submit that the grievances were all referred to arbitration and an arbitration date was scheduled for December 12, 2008. The arbitration date was adjourned because the applicant was, and continued to be, unable to attend for medical reasons. The respondents submit that the corporate respondent and the union both continue to wait for the applicant to advise that she is able to proceed with the arbitration.

4The Tribunal sent the Response to the applicant for reply on January 29, 2010 and brought to the applicant’s attention the respondents’ Request to Defer. The applicant did not file a Reply or respond to the Tribunal’s January 29, 2010 correspondence and the time for so doing has now passed.

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 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.

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 a substantial overlap between the facts and the human rights issues covered by this Application and those referred to the grievances. The grievances are still outstanding, have been referred to arbitration, and the grievance process has not concluded. 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.

9The Application will therefore be deferred pending the completion of the grievance process.

10The 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.

11I am not seized of this matter.