HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Andrea Seivwright
Applicant
-and-
Toronto Police Services Board, Toronto Police Service and William Blair
Respondents
INTERIM DECISION
Adjudicator: Ken Bhattacharjee
Indexed as: Seivwright v. Toronto Police Services Board
WRITTEN SUBMISSIONS BY
Andrea Seivwright, Applicant ) Patrick James, Counsel
Toronto Police Services Board, Toronto Police ) Omo Akintan, Counsel
Service and William Blair, Respondents )
[1] The purpose of this Interim Decision is to address whether the Application should be deferred pending the completion of a grievance proceeding.
[2] The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on January 17, 2011, which alleged that the respondents harassed and discriminated against her because of her race, disability and association with a person identified by a Code ground, and subjected her to reprisal, all with respect to employment.
[3] In section 14 of the Application, the applicant acknowledged that the facts of her Application are part of a grievance proceeding that is still in progress, but did not request that the Tribunal defer her Application until that proceeding is completed. She attached a copy of her grievance dated June 23, 2010, which included some, but not all, of the allegations of harassment, discrimination and reprisal in her Application.
[4] On March 3, 2011, the Tribunal issued a Notice of Intent to Defer to the parties and the Toronto Police Association (“TPA”), which informed them that the Tribunal determined that it may be appropriate to defer consideration of the Application pending the resolution of another legal proceeding dealing with the subject-matter of the Application.
[5] The Notice invited submissions from the parties and the TPA on this issue. The parties filed submissions, but the TPA did not.
[6] The applicant submitted that statutory test for deferral is whether the “substance” of the Application has been “appropriately” dealt with in another forum. She stated that the grievance arbitration does not and will not address the substance of the Application to this Tribunal. She cited section 45.1 of the Code and the Tribunal’s Decision in [Campbell v. Toronto District School Board, 2008 HRTO 62](https://www.minicounsel.ca/hrto/2008/62).
[7] At this juncture, I would point out that the applicant misstated the test for deferral. The issue currently before the Tribunal is whether the Application should be deferred (section 45 of the Code), not whether it should be dismissed because another proceeding has appropriately dealt with its substance (section 45.1 of the Code).
[8] The applicant also submitted that her Application should not be deferred pending the completion of the grievance proceeding because her Application included allegations of discrimination and Code grounds that were not a part of her grievance, and counsel for the respondents has not conceded that the arbitrator who will hear her grievance has jurisdiction to interpret and apply the Code.
[9] The respondents admitted that there is not a complete overlap between the allegations in the grievance and those in the Application, but submitted that other factors weigh heavily in favour of deferral.
[10] Specifically, the respondents submitted that the Application should be deferred because the Tribunal’s practice is to defer an Application where there is an ongoing grievance under a collective agreement, the grievance has been referred to arbitration and an arbitrator has been appointed, the arbitrator has jurisdiction to interpret and apply the Code, and there is a need to avoid duplicative factual and legal findings.
[11] Section 45 of the Code provides that the Tribunal may defer an Application in accordance with the Tribunal’s Rules of Procedure. Rule 14.1 of the Tribunal’s Rules provides that the 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. The Tribunal will consider, in light of the particular circumstances of each case, whether deferral is the most fair, just and expeditious way of proceeding with the Application.
[12] In [Baghdasserians v. 674469 Ontario, 2008 HRTO 404](https://www.minicounsel.ca/hrto/2008/404), the Tribunal made the following general comments about deferral at paras. 18-19:
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. However, deferral is not automatically invoked simply because the parties are involved in other legal proceedings.
Some of the factors that may be relevant in deciding whether to defer consideration of an application before the Tribunal 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.
[13] The Supreme Court of Canada has confirmed that human rights tribunals are not the only decision-makers that can decide human rights claims: [Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42](https://www.minicounsel.ca/scc/2003/42). 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: [Tekes v. Markham (Town), 2009 HRTO 1665](https://www.minicounsel.ca/hrto/2009/1665), at para. [7](https://www.minicounsel.ca/hrto/2009/1665).
[14] In my view, deferral is the most fair, just and expeditious way of proceeding with the Application. There is clearly overlap between some of the facts and issues raised in the grievance and those raised in the Application to this Tribunal, which raises the potential for duplication of evidence in two concurrent proceedings, and the possibility of inconsistent findings of fact and law.
[15] In addition, there is an ongoing grievance process, which was started before the filing of this Application, and it is at a more advanced stage than the human rights proceeding, given that the grievance has been referred to arbitration and an arbitrator has been appointed.
[16] Finally, the arbitrator will have the authority to interpret and apply the Code to address any allegations of harassment, discrimination and reprisal.
[17] The applicant has not identified any particular circumstance which would cause the Tribunal to depart from its normal approach. In my view, the fact that the Application included allegations of harassment and discrimination that were not in the applicant’s grievance, weighs in favour of, rather than against, deferral. This Tribunal has recognized that a party is normally expected to bring its entire case forward and not split it up into several pieces, adding to the cost and uncertainties associated with duplicative litigation: [Cunningham v. CUPE 4400, 2011 HRTO 658](https://www.minicounsel.ca/hrto/2011/658), at para. [57](https://www.minicounsel.ca/hrto/2011/658).
[18] Accordingly, the Tribunal orders the deferral of the Application pending the conclusion of the grievance proceeding.
[19] Where 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).
[20] I am not seized of this matter.
Dated at Toronto, this 3rd day of May, 2011.
“Signed by”
Ken Bhattacharjee
Vice-chair