Hajar Moemeni Farahani v. City of Toronto, 2012 HRTO 2313

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Hajar Moemeni Farahani Applicant

-and-

City of Toronto Respondent

-and-

CUPE Local 79 Intervenor

INTERIM DECISION

Adjudicator: Maureen Doyle Date: December 10, 2012 Citation: 2012 HRTO 2313 Indexed as: Farahani v. Toronto (City)

WRITTEN SUBMISSIONS

Hajar Moemeni Farahani, Applicant No submissions

City of Toronto, Respondent No submissions

CUPE Local 79, Intervenor Jesse M. Nyman, Counsel

Introduction

1This is an Application filed on June 18, 2010 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). This Interim Decision deals with the issue of whether the Application should be deferred pending the completion of a related grievance proceeding.

2A Summary Hearing was held in this matter and resulted in an Interim Decision, Farahani v. Toronto (City), 2012 HRTO 444, dismissing part of the Application. In the course of that Summary Hearing, the union indicated that it had filed grievances on behalf of the applicant, but was not able at that time to provide details regarding the nature of those grievances. The Interim Decision also directed the union to provide copies of the grievances which it had filed on behalf of the applicant and invited the parties to make submissions regarding the deferral of the Application.

3The applicant filed a Request for Reconsideration of the Interim Decision. That Request was dismissed in a subsequent decision of the Tribunal, Farahani v. Toronto (City), 2012 HRTO 1295.

4The union provided copies of five grievances. It submitted that all of the allegations before the Tribunal following the Interim Decision in Farahani v. Toronto (City), 2012 HRTO 444, are "part of the subject matter of outstanding grievances" and that it is appropriate to defer further consideration of the Application pending final resolution of the grievances. Three of the grievances, dated November 8, 2010 and September 30, 2011, allege that the respondent employer has breached the Collective Agreement "by not maintaining a harassment and discrimination free workplace"; one is a grievance dated November 8, 2010 regarding "an unjust letter of reprimand dated October 14, 2010"; and one is a grievance dated November 8, 2010 alleging that the respondent employer breached the Collective Agreement by denying the applicant a promotion. The union advises that the grievances dated November 8, 2010 have all been referred to Arbitration and the fifth grievance, dated September 30, 2011, has been heard at Step 2 of the Grievance procedure and is proceeding to Step 3. They take the position that the applicant's allegation regarding the conversation at the April 13, 2010 meeting is covered by the grievances dated November 8, 2010 which allege that the respondent employer has failed to maintain a harassment and discrimination free workplace. The union submits that the allegation relating to the October 2010 discipline letter is covered by the November 8, 2010 grievance regarding "unjust letter of reprimand", and finally, that the allegation regarding the need for her to apply for a full-time vacancy when she had been occupying the position on an acting basis, is covered by the November 8, 2010 grievance regarding denial of a promotion. It submitted that it is appropriate to defer further consideration of this Application pending the completion of the grievance process.

5The Tribunal did not receive submissions from the applicant regarding the question of deferral and the time for doing so has now passed.

6The respondent wrote to the Tribunal requesting "full and detailed particulars" of the grievances prior to making its submissions regarding deferral. The union objected to the respondent's request and repeated its submission that the grievances appear to cover the grievances before the Tribunal. It submitted that proceeding with the Application at this point runs "a significant risk of duplicate proceedings with possibly conflicting results".

7The Tribunal issued a Case Assessment Direction (CAD) to the parties, confirming that there was no order for particulars from the Tribunal and directing the respondent to make any submissions it wished to make regarding deferral of this Application within 7 days of the CAD. The Tribunal has received no submissions from the respondent regarding the question of deferral and the time for doing so has now passed.

8The 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.

9The Tribunal has generally deferred applications where there is an ongoing grievance under a collective agreement based on the same facts and human rights issues. 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).

10The Supreme Court thus confirmed that human rights tribunals are not the only decision-makers that can decide human rights claims. Where the parties are already engaged in a concurrent legal proceeding in which they are raising the same human rights 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.

11In this case, it is apparent that there is substantial overlap between the facts and human rights issues covered by the Application and those referred to in the grievance. There are no arguments before me which would justify a departure from the Tribunal's normal approach. The matter is still live and the grievance process has not concluded. But if the applicant believes, on conclusion of the grievance process, that her human rights issues have not been adequately addressed, she may ask to have her Application brought back on before the Tribunal.

12The Application will therefore be deferred pending the completion of the grievance process.

13The 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.

14I am not seized.