Kaplan v. Toronto Police Services Board, 2012 HRTO 491

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Renee Kaplan

Applicant

-and-

Toronto Police Services Board, Toronto Police Service – Medical Services Unit, Toronto Police Service Labour Relations Unit, William Blair, Jeanette May, Wendy Ryzek and Jonathan Davids

Respondents

INTERIM DECISION

Adjudicator: Mary Truemner

Date: March 8, 2012

Citation: 2012 HRTO 491

Indexed as: Kaplan v. Toronto Police Services Board

1This is an Application filed on December 12, 2011 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.

2The applicant indicated in the Application that the facts of the Application are part of a union grievance proceeding that is still in progress. Attached to the Application is a copy of the grievance filed on the applicant’s behalf by the Toronto Police Association (“the Association”).

3On January 10, 2012, the Tribunal issued a Notice of Intent to Defer the Application pending the resolution of the grievance procedure, and sent the Notice to the parties and to the Association, directing that any submissions on the issue of deferral must be filed with the Tribunal no later than February 10, 2012.

4Up to the date of this decision, only the respondents have filed submission. They are in support of deferral.

ANALYSIS

5The grievance and the Application both arise out of the alleged failure of the respondents to accommodate the applicant during her employment with them in 2010 and 2011. The grievance states:

Please consider this letter a grievance filed on behalf of the Toronto Police Association and its member Constable Renee Kaplan in respect of the Toronto Police Service Board’s failure to accommodate PC Kaplan and breach of privacy entitlements.

As you may be aware, the Service failed to accommodate PC Kaplan over many months, in 2010 and 2011, thereby breaching its obligations under the Human Rights Code by engaging in discrimination on the basis of disability…

6While the Application includes personal respondents who are employees of the corporate respondent, and while the Application describes in much more detail incidents of alleged harassment and failure to accommodate disability, the Application clearly provides facts that may be described in the words of the grievance as an allegation that the Toronto Police Services Board “failed to accommodate PC Kaplan over many months, in 2010 and 2011, thereby breaching its obligations under the Human Rights Code by engaging in discrimination on the basis of disability.” There is, therefore, a substantial overlap between the subject matter of the grievance and the subject matter of the Application.

7The 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.

8The Tribunal has generally deferred applications, however, 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. See Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42.

9The 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.

10In 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. The matter is still live and the grievance process has not concluded.

ORDER

11The Application will therefore be deferred pending the completion of the grievance process. Rules 14.3 and 14.4 of the Tribunal’s Rules of Procedure outline the procedure by which the Application may be brought back on after the conclusion of the grievance process.