Galina Oussatcheva v. University of Toronto, 2011 HRTO 293

Human Rights Tribunal of Ontario

B E T W E E N:

Galina Oussatcheva

Applicant

-and-

University of Toronto

Respondent

INTERIM DECISION

Adjudicator: Douglas Sanderson

Date: February 11, 2011

Citation: 2011 HRTO 293

Indexed as: Oussatcheva v. University of Toronto

1This is an Application filed on November 24, 2010, 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 applicant indicated in the Application that the facts of the Application are part of a union grievance proceeding that is still in progress, and enclosed a copy of the grievance filed on her behalf by her union, the United Steelworkers (the “union”).

3The applicant alleges in the Application that the respondent terminated her employment because she is a person with a disability and because she sought accommodation of her disability. The applicant submits, however, that the grievance will address only the termination of her employment and not her allegations that the respondent failed to accommodate her disability. The applicant therefore opposes deferral of the Application.

4Both the respondent and the union argue in favour of deferral because the grievance and Application deal with the same facts and issues and the parties continue to attempt to resolve the matter, including the applicant’s concerns regarding accommodation.

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. In particular, the applicant asserts that the respondent terminated her employment because of her disability and because she asserted her right to accommodation under the Code. Accordingly, it appears that the termination of her employment is inextricably linked to the Code issues raised in the Application and, as a result, the grievance will likely address them. The grievance process has not concluded, and it is not yet apparent whether or not the applicant’s grievance will be referred to arbitration. If the applicant believes, on conclusion of the 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.

11I am not seized.