Visentin v. University of Guelph, 2012 HRTO 1143

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Linda Visentin Applicant

-and-

University of Guelph, Catherine Canary and Chris Nutt Respondents

-and-

United Steelworkers, Local 4120 Intervenor

INTERIM DECISION

Adjudicator: Ena Chadha Decision Date: June 11, 2012 Citation: 2012 HRTO 1143 Indexed as: Visentin v. University of Guelph

WRITTEN SUBMISSIONS

University of Guelph, Catherine Canary and Chris Nutt, Respondents Michael J. Kennedy, Counsel

United Steelworkers, Local 4120, Intervenor Robert Champagne, Counsel

1This Application was filed on December 15, 2011 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment on the basis of family status.

2The applicant alleges that she was subjected to unfair treatment and discriminatorily dismissed. In response to question 14 of Form 1 of the Application, the applicant noted that a grievance is in progress with respect to the facts alleged in the Application. The applicant provided a copy of a termination grievance dated March 11, 2011.

3On March 28, 2012, the Tribunal issued a Notice of Intent to Defer (“Notice”). The Notice indicated that, pursuant to Rule 14 of the Tribunal’s Rules of Procedure, the Tribunal may defer an Application pending the resolution of another legal proceeding. The Tribunal invited the parties, and the applicant’s union, United Steelworkers, Local 4120 (“union”), as an affected party, to file written submissions within 30 days of the date of the Notice as to why consideration of the Application should or should not be deferred.

4On April 20, 2012, the applicant’s union filed a request to intervene. With respect to the issue of deferral, the union indicates that it supports deferral as the grievance deals with the same issues as raised in the Application. The union indicates that the parties have already met with Arbitrator Gerald Chareny on July 18 and 21, 2011; December 5 and 15, 2011 and April 2, 2012 for the purposes of mediation/arbitration. Upon learning of the instant Application on April 2, 2012, the Arbitrator adjourned the proceedings pending the Tribunal’s disposition of the issue of deferral.

5On May 18, 2012, the respondents filed submissions supporting deferral. The respondents submit that the facts underlying the Application are essentially the same as those plead in the grievance, for which an arbitrator is appointed and is on-going.

6The applicant did not file submissions.

Request to Intervene

7As the Tribunal stated in Boyce v. Toronto Community Housing Corporation, 2009 HRTO 131:

A union or association nearly always has an interest in a human rights application brought by an employee in a bargaining unit it represents when the application alleges discrimination in employment. Absent exceptional circumstances, the applicant’s bargaining agent will be granted intervention status in Tribunal proceedings where it requests it.

8Based on the information provided by the parties and the submissions of the union, I am satisfied that the union has an interest in the outcome of the Application. As such, and in accordance with the Tribunal’s standard practice where an applicant is a member of a bargaining unit represented by the union, the union’s request to intervene is granted.

Deferral

9The 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 (Rule 14.1). 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.

10Some factors that have been identified as 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 types 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 Baghdasserians v. 674469 Ontario, 2008 HRTO 404.

11The Tribunal generally defers applications where the parties are already engaged in a concurrent legal proceeding, particularly when the other proceeding is on-going grievance under a collective agreement based on the same facts and issues as raised in the Application. In so doing, the Tribunal has relied on Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42, wherein the Supreme Court of Canada confirmed 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.

12Based on the submissions of the union and respondents, it appears that subject matter of the Application is the very same as the grievance. In addition, the parties have already participated in 5 days of mediation/arbitration. There is significant risk of inconsistent findings of fact and duplication of resources if the current Application was to proceed concurrently with the adjudication of the grievance. As such, the most fair, just and expeditious approach is to defer consideration of this Application pending the conclusion of the applicant’s grievance and the grievance proceedings.

13I conclude that there is significant overlap in the subject matter of the Application and the outstanding grievance and a real concern with respect to parallel proceeding. Accordingly, it appropriate to defer the Application until the conclusion of the grievance and arbitration process.

14Where 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).

15I am not seized of this matter.