HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Zoila Davila
Applicant
-and-
McKesson Canada
Respondent
INTERIM DECISION
Adjudicator: Ena Chadha
Indexed as: Davila v. McKesson Canada
WRITTEN SUBMISSIONS
Zolia Davila, Applicant ) Self-represented
McKesson Canada, Respondent ) Karen Sargeant, Counsel
1The applicant filed an Application under section 34 of the Human Rights Code, R.S.O. 1990, c.H.19, as amended (the “Code”) on November 4, 2011. The Application alleges discrimination with respect to employment on the basis of disability and age.
2The respondent filed a Response on January 6, 2012 denying the allegations of discrimination. In the Response, the respondent requests that the Tribunal defer the Application because the applicant’s union, Teamsters Local Union No. 1979, filed a workplace grievance on behalf of the applicant. The respondent attached a copy of a grievance, dated October 18, 2011, regarding the alleged denial of modified duties.
3On February 1, 2012, the applicant filed a Reply wherein she stated that she was unaware of the grievance. The applicant claimed that the union did not inform her about the grievance.
4By way of Case Assessment Direction dated February 15, 2012, the parties were directed to file information and clarification about the status of the applicant’s grievance.
5On February 23, 2012, the respondent wrote to the Tribunal asking that the Tribunal defer the Application because the applicant has an outstanding grievance. Neither the applicant, nor the applicant’s union, filed any submissions in response to the February 15, 2012 Case Assessment Direction.
6By way of Case Assessment Direction dated April 5, 2012, the applicant was directed to provide written submissions to the Tribunal, copied to the respondent and the union, confirming her understanding of the status of the grievance and provide submissions with respect to the issue of deferral.
7The applicant subsequently filed submissions indicating her dissatisfaction with the union’s support and provided a copy of a letter from her union, which notes that the applicant has two active grievances. The letter states that the applicant has one grievance with respect to the respondent company’s refusal to accommodate her and a second grievance with respect to termination of her employment. The letter indicates that the grievances are at different stages of the grievance process. The applicant asks the Tribunal to delay any decisions regarding her file until the union has made a decision regarding the processing of her grievances.
DEFERRAL
8The 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, thereby raising the possibility of inconsistent decisions on facts or law.
9Some 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.
10The Tribunal generally defers applications where the parties are already engaged in a concurrent legal proceeding, particularly when the other proceeding is 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.
11I see no reason to depart from the Tribunal’s general approach and find that deferral is warranted in the present circumstances. While the applicant may be dissatisfied with how the union handled her concerns, it nevertheless appears that the union has filed two grievances on behalf of the applicant, which remain outstanding and directly overlap with the substance of this Application.
12As noted in various Tribunal decisions, there are compelling reasons why it may be unfair for parties to be required to simultaneously present their cases in multiple fora, particularly when the matters overlap; when the same facts or issues are in dispute there is a potential for inconsistent findings, and it is generally preferable for one proceeding to be completed before the other starts. Further, as recently stated in McFarlane v. Farraway, 2012 HRTO 657, “[w]here 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.”
13I find the same set of facts and legal issues that underlie the current Application form the basis of the two outstanding grievances. In this type of situation, the Tribunal has found it appropriate to defer an application to avoid two proceedings running concurrently which risks inconsistent findings of fact and law. Further, the Tribunal does not require that the grievance process be at an advanced stage in order for it to exercise its discretion to defer. See Tomlinson v. J. Provost Contracting Ltd., 2012 HRTO 275, and Melville v. Toronto (City), 2012 HRTO 22.
14As such, I determine that the most fair, just and expeditious approach is to defer consideration of this Application pending the conclusion of the applicant’s grievances and the grievance proceedings.
CONCLUSION
15The Tribunal orders that the Application is deferred pending the conclusion of the applicant’s grievances and the grievance proceedings.
16The Tribunal directs the parties’ attention to Rules 14.3 and 14.4 of the Tribunal’s Rules of Procedures which set out the process if a party wishes to proceed with an application pending the conclusion of another proceeding.
17I am not seized of this matter.
Dated at Toronto, this 3rd day of May, 2012.
”signed by”_____________
Ena Chadha
Vice-chair