Human Rights Tribunal of Ontario
Between:
Phoi Thi Pauline Watt Applicant
-and-
Corporation of the City of Toronto-Children’s Services, Helen Schaeffer and Mary-Anne Bedard Respondents
Interim Decision
Adjudicator: Ena Chadha Date: November 28, 2012 Citation: 2012 HRTO 2214 Indexed as: Watt v. Corporation of the City of Toronto-Children’s Services
Written Submissions
Corporation of the City of Toronto-Children’s Services, Helen Schaeffer and Mary-Anne Bedard, Respondents Omo Akintan, Counsel
1This Application was filed on September 6, 2012, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (“Code”), alleging discrimination and reprisal with respect to employment on the basis of disability.
2The applicant’s allegations relate to an issue of attendance management and accommodation. The applicant alleges that she was unfairly treated and dismissed because of her disability. Along with her Application, the applicant provided a copy of a grievance dated August 10, 2012, alleging dismissal without just cause.
3On October 9, 2012, the Tribunal issued a Notice of Intent to Defer pending the resolution of another legal proceeding dealing with the subject matter of the Application pursuant to Rule 14 of the Tribunal’s Rules of Procedure. The Tribunal invited the applicant, the respondent 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.
4The respondents filed submissions on November 8, 2012 supporting deferral. The respondents provided copies of four grievances dealing with the applicant’s disability-related concerns and allegations of failure to accommodate. The respondents noted that the matters raised in the Application are substantially the same was those covered by the applicant’s grievances. The respondents submit that the Application should be deferred pending the resolution of the earlier filed grievances to avoid the possibility of contradictory decisions.
5Neither the applicant, nor the applicant’s union filed submissions regarding the issue of deferral.
Deferral
6The 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.
7Some 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.
8The Tribunal generally defers applications where the parties are already engaged in a concurrent legal proceeding, particularly when the other proceeding is an 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.
9I see no basis to depart from the Tribunal’s regular approach to defer an Application where the Application overlaps with an active grievance. In the present case, the applicant has four outstanding grievances which overlap with the allegations set out in the Application. The respondents note that the grievance process is underway. In the interest of efficiency and to avoid concurrent proceedings, the Tribunal will defer this Application pending the conclusion of the grievance procedures.
10Accordingly, this Application deferred
ORDERS
11The Application is deferred pending the conclusion of the grievance procedures.
12Where 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).
13I am not seized of this matter.
Dated at Toronto, this 28th day of November, 2012.
”signed by”
Ena Chadha Vice-chair