McGee v. Toronto (City), 2011 HRTO 1013

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Sharon McGee Applicant

• and-

City of Toronto, Leslie Stants, Franc Riggio, Elaine Kong, Dennis Lis, Priscilla McLellan Respondents

INTERIM DECISION

Adjudicator: Ena Chadha Date: May 27, 2011 Citation: 2011 HRTO 1013 Indexed as: McGee v. Toronto (City)

1The applicant filed an Application on March 4, 2011, under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) alleging discrimination with respect to employment on the basis of disability. In her Application, the applicant notes that the facts relied upon in her Application are part of a union grievance. The applicant enclosed copies of two grievances.

2On April 14, 2011, the respondents filed a Response and asked the Tribunal to defer the Application. The respondents point out that the allegations made in the Application with respect to failure to accommodate and unfair termination are also the basis of the applicant’s two grievances.

3On April 20, 2011, the Tribunal issued a Notice of Intent to Defer on the basis that there is an on-going proceeding raising some or all of the facts and issues raised in the Application. The Tribunal directed the applicant to file a Reply with submissions regarding whether or not the Application should be deferred.

4The applicant filed a Reply on May 4, 2011 and objects to the request to defer.

REQUEST TO DEFER

5The 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 (Rule 14.1). 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.

6The Tribunal will generally defer an application where there is an ongoing grievance under a collective agreement based on the same facts and issues. See Blackman v. Ontario (Community Safety and Correctional Services), 2009 HRTO 970 at para. 5. 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 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.

7Based on the materials filed with the Tribunal, it appears that there are two outstanding grievances related to the issues of accommodation and wrongful dismissal as alleged in the Application and that these matters are presently being mediated between the applicant’s union and the respondent employer. In these circumstances deferral is appropriate.

8Where a party wishes to proceed with an application which has been deferred, the party must make a Request for an Order During Proceedings in accordance with Rule 19 within 60 days after the conclusion of the other proceeding (Rules 14.3 and 14.4).

9In conclusion, the Tribunal orders the deferral of this Application pending the resolution or completion of the two grievances. The style of cause is amended to reflect the correct spelling of personal respondent Franc Riggio’s name.

10I am not seized of this matter.