Jama v. Imperial Parking Canada Corporation, 2012 HRTO 2147

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Munir Jama

Applicant

-and-

Imperial Parking Canada Corporation

Respondent

-and-

United Food and Commercial Workers

Affected Party

INTERIM DECISION

Adjudicator: David Muir

Date: November 14, 2012

Citation: 2012 HRTO 2147

Indexed as: Jama v. Imperial Parking Canada Corporation

WRITTEN SUBMISSIONS

Munir Jama, Applicant

Self-represented

Imperial Parking Canada Corporation, Respondent

Sarah Goodman, Counsel

United Food and Commercial Workers Affected Party

Rebecca Lee, Counsel

1This is an Application filed 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 because of colour, creed, ethnic origin, place of origin, race, reprisal and sex. In her Application, the applicant makes essentially two broad allegations, first that she was demoted/transferred from a work position for discriminatory reasons, secondly the applicant alleges that she was terminated from her employment for discriminatory reasons related to her pregnancy.

2The respondent has filed a Request for Order During Proceedings (Form 10) as well as a Request for Summary Hearing (Form 26). Amongst the issues raised by the respondent is a request to defer the Application pending the conclusion of a grievance filed by the applicant in relation to the termination of her employment.

3The affected party has filed a Request to Intervene (Form 5).

4The applicant has responded to some of the issues raised above, and the time for her responding to them has passed. Although the applicant did not respond directly to this aspect of the respondent’s Request, the applicant has indicated that she is concerned that the affected party has not energetically moved her grievance forward.

5The Tribunal may defer consideration of an application, on such terms as it may determine, and on its own initiative (Rule 14.1). The Tribunal has stated that deferral is not automatically invoked simply because the parties are involved in other legal proceedings. It is a discretionary measure that the Tribunal exercises on the basis of the circumstances in each case. Absent good reason, applicants and respondents before the Tribunal are entitled to expect the Tribunal to take timely action to resolve complaints of discrimination brought before it.

6The Tribunal has generally deferred applications where there is an ongoing grievance under a collective agreement based on the same facts. 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 and other employment-related statutes 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).

7In any case, where the parties are already engaged in a concurrent legal proceeding in which they are raising the same 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.

8In this case, it is apparent that there is substantial overlap between the facts and issues covered by the Application and those referred to in the grievance. I am satisfied that the concerns the applicant raises about the Union’s position on her grievance do not justify a departure from the Tribunal’s normal approach. The grievance process has not concluded. It is not yet apparent whether or not the applicant’s grievance will be referred to arbitration. The Application will therefore be deferred pending the completion of the grievance process.

9The 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 grievance process. The other matters raised by the respondent and the affected party will be dealt with by the Tribunal if the Application is brought back on.

10I am not seized of this case. .