Hudson v. Kingston (City), 2011 HRTO 873

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Donna Hudson

Applicant

-and-

Corporation of the City of Kingston, Carl Smith, Damon Wells, Daryl Townsend and Judy Brick

Respondents

INTERIM DECISION

Adjudicator: Alan G. Smith

Date: May 4, 2011

Citation: 2011 HRTO 873

Indexed as: Hudson v. Kingston (City)

WRITTEN SUBMISSIONS BY:

Donna Hudson, Applicant ) John T. Zuber, Counsel

Corporation of the City of Kingston, ) Carl Smith, Damon Wells, ) Christopher J. Edwards, Counsel Daryl Townsend and Judy Brick ) Respondents )

INTRODUCTION

1This is an Application filed May 14, 2010, pursuant to section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, alleging discrimination based on sex. This interim decision deals with a Notice of Intent to Defer by the Tribunal issued March 16, 2011, by which the Application would be deferred pending the outcome of an ongoing workplace grievance-arbitration process undertaken by the applicant and employer respondent.

2In a Response filed April 14, 2011, counsel for the employer respondent advised that the employer consented to have the Application deferred given that a key allegation contained in the Application, the July 2010 termination of the applicant’s employment, is the subject of an arbitration hearing begun on April 4, 2011.

3By letter to the Tribunal received April 15, 2011, the applicant consented to deferral of her Application to August 2011.

4Deferral 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.

5While 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. (Christianson v. College of Physicians and Surgeons, 2009 HRTO 438 at para. 10, Groves v. Ontario (Community Safety and Correctional Services), 2010 HRTO 1779).

DECISION

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: Blackman v. Ontario (Minister of 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.

7A review of the grievances filed by the applicant, both on the matter of the employer’s denial of promotion in August 2009 and termination of employment in 2010, reveals that they are virtually identical to the subject matter of the Application.

8The Tribunal’s Rules of Procedure do not contemplate deferral of an Application to a specific future date, as requested by the applicant. Tribunal Rule 14 states in part:

14.3 Where a party wishes the Tribunal to proceed with an Application which has been deferred the request must be made in accordance with Rule 19.

14.4 Where an Application was deferred pending the outcome of another legal proceeding, a request to proceed under Rule 14.3 must be filed no later than 60 days after the conclusion of the other proceeding, must set out the date of the other legal proceeding concluded and include a copy of the decision or order in the other proceeding, if any.

9Tribunal Rule 19 outlines the process by which a party may make a Request for an Order During Proceedings that the Tribunal to proceed with an application after the conclusion of another process.

ORDER

10On consent of all parties, the Tribunal orders consideration of the Application deferred pending the conclusion of the grievance arbitration process.

11I am not seized of this matter.