Human Rights Tribunal of Ontario
Between:
Emanuel Abraham Applicant
-and-
University of Toronto Respondent
Interim Decision
Adjudicator: Eric Whist Date: July 11, 2012 Citation: 2012 HRTO 1370 Indexed as: Abraham v. University of Toronto
Written Submissions
University of Toronto, Respondent Catherine Peters, Counsel
Canadian Union of Public Employees and its Local 3261 David Steele, Counsel
1This Application, which was filed on May 15, 2012 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleges discrimination in employment on the basis of family status and marital status.
2The Application states that the facts of the Application are part of a grievance arbitration proceeding that is still in progress. The Application further requests that the Tribunal defer consideration of the Application until the grievance arbitration proceeding is completed.
3On June 8, 2012, the Tribunal issued a Notice of Intent to Defer in which it indicated that it might be appropriate for the Tribunal to defer consideration of the Application pending the resolution of other legal proceedings. The Tribunal has received submissions in response to this notice from the respondent and the Canadian Union of Public Employees (“CUPE”) and its Local 3261, the applicant’s bargaining agent.
4The respondent submits that the Tribunal should defer consideration of the Application pending the outcome of the ongoing grievance arbitration process. It submits that the grievance and Application arise from the same facts and issues including whether the applicant was subject to discrimination on the basis of family status and marital status. The respondent submits that an arbitration hearing has been scheduled to commence on July 10, 2012 and that the imminent commencement of the arbitration hearing is another reason to defer the Application.
5CUPE submits that the applicant’s grievance concerns the same subject matter as the Application. It takes no position on the issue of deferral at this time.
Decision
6The Tribunal may defer consideration of an application on such terms as it may determine and on its own initiative. See Rule 14.1 of the Tribunal’s Rules of Procedure. Deferral 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. In considering whether to defer an application the Tribunal will look at 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 to the parties to defer, having regard to the status of each proceeding and the steps that have been taken to pursue them. However, deferral is not automatically invoked simply because the parties are involved in other legal proceedings. See Baghdasserians v. 674469 Ontario, 2008 HRTO 404.
7Both the respondent and the applicant request that the Application be deferred until the outcome of the grievance arbitration process. I agree that this is appropriate. The Tribunal’s general practice is to defer applications when there is an ongoing grievance under a collective agreement based on the same facts and issues as raised in an application, as is the case here. Grievance arbitrators have not only the power but also the responsibility to implement and enforce the substantive rights and obligations of human rights. I further note that in this case a grievance arbitration date has already been set.
8The Tribunal directs the parties’ attention to Rule 14 of the Tribunal’s Rules of Procedure which sets out the procedure if a party wishes to proceed with an application that has been deferred pending the conclusion of another proceeding.
9I am not seized of this matter
Dated at Toronto, this 11th day of July, 2012.
Signed by
Eric Whist Vice-chair