HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Robin Cooper
Applicant
-and-
City of Toronto
Respondent
INTERIM DECISION
Adjudicator: Alan G. Smith Date: April 29, 2011 Citation: 2011 HRTO 841 Indexed as: Cooper v. Toronto (City)
WRITTEN SUBMISSIONS
Toronto City Employees Union, Local 416, Applicant ) Ryan Goldvine, Counsel
INTRODUCTION
1This is an Application filed January 21, 2011, pursuant to section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).
2On February 25, 2011 the Tribunal issued a Notice of Tribunal Intent to Defer the Application pending the outcome of the ongoing workplace grievance-arbitration process involving these parties and related to the subject-matter of the Application.
3The Notice was delivered to the applicant, respondent, and the applicant’s bargaining agent, Toronto City Employees Union, Local 416, seeking submissions in response by March 28, 2011.
4No submissions regarding the Request to Defer were received from the applicant or respondent. The applicant’s bargaining agent advised on March 25, 2011 that it took no position on deferral of the Application.
5Deferral of an application ensures that proceedings dealing with the same issues do not run concurrently, raising the possibility of inconsistent decisions on facts or law.
6While deferral is not automatic, it is granted to avoid adjudicative duplication. The Tribunal has held that some of the factors that may be relevant in deciding whether to defer consideration of an application are the subject matter of the other proceeding, the nature of the other proceeding, the type of remedies available in the other proceeding, and whether it would be fair overall to the parties to defer, having regard to the status of each proceeding and the steps that have been taken to pursue them. See Christianson v. College of Physicians and Surgeons, 2009 HRTO 438, at para. 10; and Groves v. Ontario (Community Safety and Correctional Services), 2010 HRTO 1779.
DECISION
7The Tribunal has generally deferred applications where there is an ongoing grievance under a collective agreement based on the same facts and human rights 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. See Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42.
8A review of the grievances filed by the applicant and her union on September 16, 2009, and February 22, 2010, reveal they are virtually identical to the subject-matter of the Application.
9In these circumstances, the Tribunal finds that the most fair, just and expeditious approach is to defer consideration of this Application pending the conclusion of the grievance arbitration process. The Tribunal directs the parties’ attention to Rules 14.3 and 14.4 which outline the process by which a party may request, in accordance to Rule 19, the Tribunal to proceed with an application after the conclusion of another process.
10I am not seized of this matter.
Dated at Toronto, this 29th day of April, 2011.
”signed by”___________
Alan G. Smith
Member