Cyndi Lafond v. South Essex Community Council and Caroyln Warkentin, 2012 HRTO 161

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Cyndi Lafond

Applicant

• and-

South Essex Community Council and Caroyln Warkentin

Respondents

INTERIM decision

Adjudicator: Ena Chadha

Date: January 20, 2012

Citation: 2012 HRTO 161

Indexed as: Lafond v. South Essex Community Council

1The applicant filed an Application under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”), on November 8, 2011, alleging discrimination and reprisal with respect to employment on the basis of disability and record of offences. The applicant alleges that she was dismissed because she took three days off due to her disability and because of criminal convictions. The applicant also alleges that she was dismissed as reprisal because of her previous human rights application.

2The Application indicates that the facts of the Application are part of union grievances which are currently in progress. Copies of two workplace grievances, dated October 17 and 21, 2011, were filed along with the Application. The first grievance alleges that the the applicant was unjustly dimissed and the respondent employer violated the applicant’s human rights by not recognizing her disability. The second grievance alleges that the respondent employer failed to pay the applicant for sick time.

3On November 9, 2011, the respondents wrote to the Tribunal requesting that the Tribunal defer the Application because of the grievances were proceeding to arbitration.

4On December 5, 2011, the Tribunal issued a Notice of Intent to Defer pending the resolution of another legal proceeding dealing with the subject matter of the Application. The Tribunal invited the applicant, the respondents, and the applicant’s union, as an affected party, to file submissions as to why consideration of the Application should or should not be deferred.

5On January 4, 2011, the respondents filed written submissions indicating that the applicant’s two grievances have been referred for expedited arbitration and that hearing dates are scheduled for April and May 2012. The respondents submit that factual allegations contained in the Application are the same as the facts raised in the grievances and that the issues for determination, namely discrimination and reprisal due to disability and record of offences, are the same issues to be determined by the arbitrator. The respondents submit that the applicant is seeking the same remedies in the Application as well as the grievances.

6On January 5 , 2012, the applicant’s union filed written submissions indicating that only the first grievance has been referred to expedited arbitration and that the second grievance has yet to be referred to arbitration. The union contends that there is limited overlap between the first grievance and the Application. The union suggested that the Tribunal canvass mediation.

7On January 6, 2012, the respondents wrote to the Tribunal confirming that while only the first grievance has been referred to expedited arbitration, the respondent employer was prepared to “fast track the second grievance so that both grievances can be heard at the same arbitration hearing scheduled to commence on April 2, 2012.

DECISION

8The 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.

9The Tribunal will generally defer an application where there is an on-going grievance under a collective agreement based on the same facts and issues. 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. Some 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.

10Based on the materials submitted with the Application, it appears that the two grievances were commenced in October 2011 and, therefore, prior to the filing of this Application. It also appears that the grievances raise the same facts and issues as alleged in this Application, specifically both make allegations with respect to failure to recognize the applicant’s disability and unfair dismissal. I find that there is significant overlap between the facts and issues in the current Application and two grievances.

11Contrary to the union’s submissions, I find that there is no indication that the human rights issues will not be resolved or dealt with through the arbitration process. 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 and other employment-related statutes 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.

12Given the possibility of concurrent proceedings and inconsistent findings of fact and law, I determine that the most fair, just and expeditious approach is to defer consideration of this Application in these circumstances.

13The Tribunal orders the deferral of the Application pending the conclusion of the arbitration process. The Tribunal directs the parties’ attention to Rules 14.3 and 14.4, which outline the procedure by which the Application may be brought back on after the conclusion of the arbitration process.

14I am not seized of this matter.