Tomlinson v. J. Provost Contracting Ltd., 2012 HRTO 275

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Rosemary Tomlinson

Applicant

-and-

J. Provost Contracting Ltd. and James Murphy

Respondents

INTERIM DECISION

Adjudicator: Ena Chadha

Date: February 8, 2012

Citation: 2012 HRTO 275

Indexed as: Tomlinson v. J. Provost Contracting Ltd.

1The applicant filed this Application on August 22, 2011 under Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Application alleges discrimination, harassment and reprisal with respect to employment on the basis sex, family status, marital status, age and association with a person identified by a Code ground. The applicant alleges that she was subjected to discrimination and harassment and, ultimately, dismissed because of the respondents’ unfair treatment.

2The respondents filed a Response on November 23, 2011, denying all of the allegations. The respondents ask the Tribunal to defer the Application because the applicant filed a grievance alleging that her employment was terminated without just cause.

3On November 29, 2011, the Tribunal delivered the Response and a Notice of Request to Defer (“Notice”) to the applicant and the affected party, the applicant’s union. The Notice indicated that the respondents have requested the Tribunal to consider whether or not the Application should be deferred pending the resolution of grievance proceeding dealing with the subject matter of the Application pursuant to Rule 14 of the Tribunal’s Rules of Procedure. The Notice directed the applicant to file submissions regarding the issue of deferral.

4The applicant did not file submissions and the timeline for doing so has elapsed.

DEFERRAL

5The Tribunal will generally defer an application where there is an on-going legal proceeding based on the same facts and issues. 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.

6Some 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.

7The Response indicates that the applicant filed a grievance alleging that she was terminated without just cause and that, on October 6, 2011, the applicant’s union filed an application for an expedited arbitration. As a result of various positions the respondent has taken in defending against the grievance, on October 14, 2011, the Minister of Labour referred the question of whether there is jurisdiction to appoint an arbitrator to the Ontario Labour Relations Board (“OLRB”) with respect to the applicant’s grievance.

8As such, the respondents’ submissions and the accompanying documentation, confirm that there are two legal processes underway in relation to the facts and issues that form the basis of this Application: 1.) an outstanding grievance regarding the employment-related facts alleged in the Application and 2.) a referred question to the OLRB arising out of that grievance with respect to jurisdiction.

9The Tribunal will generally defer an application where there is an ongoing grievance or arbitration under a collective agreement based on the same facts and issues. I see no reason to depart from this approach. It is apparent that there is overlap between the facts and issues covered by the Application and those referred to in the unjust dismissal grievance. Further, the grievance appears to seek the same remedies as those identified in the Application. In addition, it appears that the corporate respondent and the affected party are currently involved in a legal proceeding before the OLRB dealing with jurisdictional issues that flow from the facts as alleged in the grievance and this Application.

10I conclude that there is overlap in the subject matter of the Application and the outstanding grievance and that there are concurrent legal proceedings before the OLRB in relation to the outstanding grievance. I determine that the most fair, just and expeditious approach is to defer consideration of this Application pending the conclusion of the applicant’s grievance.

DIRECTIONS

11The Tribunal orders the deferral of the Application pending the conclusion of the applicant’s grievance.

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 of the Tribunal’s Rules of Procedure within 60 days after the conclusion of the other proceeding (Rules 14.3 and 14.4).

13I am not seized of this matter.