Gordon v. Toronto Community Housing Corporation, 2011 HRTO 1956

Human Rights Tribunal of Ontario

Between:

Janice Gordon Applicant

-and-

Toronto Community Housing Corporation Respondent

Interim Decision

Adjudicator: Douglas Sanderson Date: October 31, 2011 Citation: 2011 HRTO 1956 Indexed as: Gordon v. Toronto Community Housing Corporation

1This is an Application filed on September 1, 2011 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). This Interim Decision deals with the issue of whether the Application should be deferred pending the completion of a related grievance proceeding.

2The Application alleges discrimination in employment because of race, colour, disability and reprisal. In the Application, the applicant alleges she was subject to harassment and threats in the workplace. The applicant filed a grievance with her union based on the same facts. In its Response, the respondent noted that the parties to the grievance are set to appoint an arbitrator and the matter will proceed to arbitration; therefore, the respondent requested deferral of the Application, pending the outcome of the applicant’s grievance. In her Reply, the applicant acknowledged that the grievance in question is based on the same facts as the Application. She states, however, that she is considering withdrawing from the arbitration proceedings because she has lost faith in that process.

3The 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.

4The 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).

5The Supreme Court has 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.

6In this case, it is apparent that the facts issues covered by the Application are the same as those referred to in the grievance. The respondent and union apparently intend to pursue the grievance to arbitration and the applicant has not withdrawn the grievance.

7The Application will therefore be deferred pending the completion of the grievance process.

8The 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.

9I am not seized.