Melville v. Toronto (City), 2012 HRTO 22

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Andrea Melville

Applicant

-and-

City of Toronto and Canadian Union of Public Employees, Local 79

Respondents

INTERIM DECISION

Adjudicator: David A. Wright

Date: January 5, 2012

Citation: 2012 HRTO 22

Indexed as: Melville v. Toronto (City)

APPEARANCES

Andrea Melville, Applicant ) Timothy Bingham, ) Counsel

City of Toronto, Respondent ) Cory Lynch, Counsel

Canadian Union of Public Employees, Local 79, ) Ken Stuebing, Counsel Intervenor ) )

INTRODUCTION

1The Tribunal will typically defer an application when there is an ongoing grievance under a collective agreement based on the same facts and/or issues. The applicant argues that that this approach is inconsistent with the goal of conducting human rights proceedings in a fair, just and expeditious manner. He also argues that the deferral power, set out in s. 45 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, and Tribunal Rule 14, violate s. 7 of the Canadian Charter of Rights and Freedoms. Counsel submits that it is unjust and contrary to the Charter to hold the Tribunal’s process in abeyance when a grievance is proceeding, given that the union, and not the individual employee, is the party to the grievance process. The applicant submits that in this case, in which it is uncontested that she has filed a grievance through her union raising the same human rights issues as are before this Tribunal, the Tribunal should refuse to defer as requested by the respondents. In the alternative, she asks that the Tribunal set conditions on deferral that establish timelines for the employer and union to meet various stages in the grievance process.

FACTUAL BACKGROUND

2The Application was filed on December 31, 2010. It alleges discrimination with respect to employment because of race, colour, place of origin and ethnic origin. The applicant is an employee at Cummer Lodge, operated by the respondent City (the “employer”). The Application alleges systemic discrimination by the employer against Black employees and makes various allegations of individual discrimination against the applicant, including in improper discipline. It is unclear how Canadian Union of Public Employees, Local 79 (the “union”) is alleged to have violated the Code, since the only allegations appear to relate to the purported failure of the union to pursue grievances vigorously enough. The Tribunal has held in numerous cases that the failure to file or pursue a human rights grievance is not, in and of itself, discrimination: see Traversy v. Mississauga Firefighters’ Association, 2009 HRTO 996 at para. 33 and Arias v. Centre for Spanish Speaking Peoples, 2009 HRTO 1025 at paras. 16-18.

3Both respondents requested, in their Responses, that the Application be deferred pending the conclusion of the grievance and arbitration process. There are two grievances that relate to the issues in the Application: a grievance alleging harassment filed on August 3, 2010 and a grievance alleging unjust discipline for a workplace incident filed November 17, 2010. The two grievances are scheduled for mediation on January 10, 2012. Under the collective agreement, the union will then make a decision about whether to refer the grievances to arbitration.

4In response to the deferral requests, the applicant filed a Notice of Constitutional Question and argued that the deferral power is unconstitutional. A telephone hearing was held on December 12, 2011 at which the applicant made submissions. The respondents were not required to prepare submissions. Having considered the applicant’s submissions, there is no need to hear from the respondents, since I have concluded that there is no violation of the Charter and the Application should be deferred.

ANALYSIS

5Deferral suspends the Tribunal’s process pending the outcome of another proceeding. It is aimed at avoiding duplication of legal processes. It results from the recognition that a variety of tribunals have the jurisdiction to deal with human rights matters (Tranchemontagne v. Ontario (Director, Disability Support Program), 2006 SCC 14) and that the facts underlying them may also arise in other proceedings.

6Labour arbitrators have full jurisdiction to apply the Code and to award Code remedies: Labour Relations Act, S.O. 1995, c. 1, sched. A, s. 48(12)(j), as amended; Parry Sound Social Services Administration Board v. O.P.S.E.U., Local 342, 2003 SCC 42. The applicant argues that it is unjust to defer to arbitration because the parties to the arbitration are the union and the employer, not the individual grievor. Since the union and employer make the ultimate decisions about the conduct of the arbitration, this leaves grievors vulnerable to delays caused by a union. A union may make decisions that the grievor does not agree with and cannot control. The applicant also argues that until the matter is referred to arbitration, there is not a formal “proceeding” with a third party neutral, and it is particularly inappropriate to defer to such a process in which there is no procedural fairness owed. Given the fundamental nature of the rights in the Code, she argues, this loss of control is wrong and, indeed, unconstitutional. She argues that if the Tribunal does defer, it should place conditions on the deferral, requiring the union and employer to move through the stages of the grievance and arbitration process under timelines set by the Tribunal.

7I do not agree that the Tribunal’s policy of deferring to ongoing grievance processes is unjust. The Tribunal’s approach to deferral does not affect the substance of any party’s rights. It is a procedural step, holding the matter in abeyance while another, overlapping process, takes place. The applicant may subsequently proceed at the Tribunal, subject to the application of s. 45.1 of the Code, pursuant to which an application may be dismissed, in whole or in part, where another proceeding has appropriately dealt with the substance of the application.

8An individual working under a collective agreement has a choice – he or she can choose not to file or proceed with a grievance and to pursue the application at the Tribunal instead. If the applicant chooses the grievance process and what comes with it, including representation by the union and the enforcement of particular rights under the collective agreement, he or she cannot also proceed with a Tribunal application at the same time. Deferral avoids two simultaneous proceedings that may result in conflicting determinations, ensures that the respondent need not be actively defending the same matter in two legal proceedings at the same time, and focuses the Tribunal’s limited resources on cases where it is the only process being pursued. In my view, it is consistent with the Tribunal’s mandate to interpret its rules in a fair, just and expeditious manner to defer a case when a grievance is ongoing, whether or not that grievance has yet been referred to arbitration. The grievance process is a stage in dispute resolution before the matter is referred to an independent third party, but that does not mean that there is no proceeding ongoing. Fairness supports avoiding the duplication of proceedings.

9The Tribunal’s established approach is consistent with the approach of the courts to circumstances in which human rights tribunals have overlapping jurisdiction with other bodies. The courts have strongly discouraged duplication and relitigation of conclusions reached in other bodies. See, for example, British Columbia (Workers’ Compensation Board) v. Figliola¸ 2011 SCC 52, and College of Nurses v. Trozzi, 2011 ONSC 4614. The Tribunal has applied that approach to labour arbitration: Gomez v. Sobeys Milton Retail Support Centre, 2011 HRTO 2297.

10The applicant relies on Naraine v. Ford Motor Company of Canada (2001), 2001 CanLII 21234 (ON CA), 209 D.L.R (4th) 465. Naraine does not suggest that an applicant can pursue two proceedings at the same time. Moreover, it is not clear that Naraine would be decided the same way today in light of s. 45.1 of the Code and its interpretation in Figliola.

11The applicant argues that labour arbitration should be treated differently from other types of proceedings because the applicant is not formally a party and the union has the final decision about the manner in which the matter moves forward. However, the Tribunal may defer to various processes to which the applicant is not a formal party, including criminal proceedings against a respondent (see, for example, Miller v. Bernard, 2010 HRTO 1488) and professional discipline (see, for example Shakir v. Kidron Valley Rehab, 2010 HRTO 1310). Moreover, this argument fails to recognize that in general, the law gives exclusive jurisdiction to labour arbitrators where a matter arises expressly or inferentially from the collective agreement, including rights under the Canadian Charter of Rights and Freedoms: Weber v. Ontario Hydro, 1995 CanLII 108 (SCC), [1995] 2 S.C.R. 929. The Code departs from those principles by allowing a unionized applicant to file a Tribunal application. Against this background, I fail to see how it is unjust that an applicant is permitted to pursue only one avenue at a time.

12I also do not agree with the applicant that it would be appropriate for the Tribunal to essentially supervise the grievance process by setting timelines for meeting particular steps in the process. There are many factors affecting the speed at which matters move through a grievance and arbitration process including the number of grievances outstanding in a workplace, the availability of mediators and arbitrators selected by the parties, and the parties’ resources, to name just a few. The Tribunal would have neither the knowledge in a particular case nor the expertise to do so. What the applicant asks would be directly contrary to the Supreme Court’s statement in Figliola, at para. 38, that there should be “territorial respect among neighbouring tribunals” and that human rights tribunals may not engage in “lateral adjudicative poaching” of tribunals with concurrent jurisdiction.

13This does not leave applicants unable to pursue their rights if the union does not move the grievance forward. The Tribunal has refused to defer where a grievance process was not moving forward in a timely manner: see Monck v. Ford Motor Company of Canada, 2009 HRTO 861 and Gomez v. Grand River Foods, 2011 HRTO 2106. It is also, in my view, open to an applicant whose case has been deferred to file a Request for Order During Proceedings requesting reactivation on the basis that a grievance process has been unreasonably slow or to ask for reactivation on the basis that the grievor has withdrawn or attempted to withdraw the grievance entirely.

14Finally, I turn to the applicant’s constitutional argument. The applicant argues that s. 45 of the Code violates s. 7 of the Charter “by facilitating the transfer of inalienable human rights from individuals to unions”. Section 7 of the Charter reads:

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

15The analysis under s. 7 begins with a consideration of whether deferral of an HRTO application deprives the applicant of life, liberty or security of the person. The applicant argues that the liberty interest is engaged because this is a state compulsion that affects important and fundamental life choices: Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307. The applicant argues that the choice of how to pursue Code rights is a fundamental life choice and that deferral compels a particular choice. I do not agree. The Code establishes rights to freedom from discrimination and, together with the Labour Relations Act, mechanisms for their enforcement. Deferral simply provides that two parallel matters cannot be pursued at the same time. It is not a state restriction on fundamental personal choices like those referred to in Blencoe such as where to establish one’s home, the parental interest in caring for one’s children, or choices related to medical care. Section 7 is not engaged by the Tribunal’s deferral power.

16Therefore, applying the Tribunal’s general approach, in light of the ongoing grievance this matter should be deferred.

ORDER

17The Application is deferred pending the completion of the grievance and arbitration process. Where 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).

18I am not seized.