Della Rocca v. Loblaws Inc., 2013 HRTO 1291

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Sandy Della Rocca

Applicant

-and-

Loblaws Inc., Rob Belcher, Daryn Switzer, Carly Auburger,

Jeff Park, and Lambert Choi

Respondents

INTERIM DECISION

Adjudicator: Ken Bhattacharjee

Date: July 24, 2013

Citation: 2013 HRTO 1291

Indexed as: Della Rocca v. Loblaws Inc.

WRITTEN SUBMISSIONS

Loblaws Inc., Respondent ) Gordon Fitzgerald, Counsel

United Food and Commercial Workers ) Jeff Andrew, Counsel

Canada, Local 1000A )

1The purpose of this Interim Decision is to decide whether the Tribunal should defer consideration of the Application pending the conclusion of a grievance proceeding.

2On April 23, 2013, the applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), which alleged that the respondents subjected her to discrimination because of her sex and reprisals with respect to employment. Specifically, she alleged that between May 2012 and April 2013, the respondents subjected her to sexual harassment, demoted her and denied her positions because of her sex, and subjected her to harassment and reprisals for claiming her rights under the Code, including denying her opportunities for advancement.

3In section 14 of the Application, the applicant acknowledged that the facts of the Application are part of a union grievance proceeding that is still in progress, but did not request that the Tribunal defer her Application until the grievance proceeding is completed. She attached a copy of a grievance dated August 3, 2012, which stated:

I grieve that the company violated the terms set in the Collective Agreement, the Human Rights Code and any pertinent acts by failing to provide a harassment free workplace.

This required adjustment is that I be made whole with full and immediate redress.

4On May 9, 2013, the Tribunal's Registrar sent the parties and the United Food and Commercial Workers Canada, Local 1000A (the "Union") a letter, which requested written submissions on the issue of deferral.

5The organization respondent and the Union filed submissions, but the applicant and the individual respondents did not, and the time for doing so has now passed.

6Section 45 of the Code provides that the Tribunal may defer an Application in accordance with the Tribunal's Rules of Procedure. Rule 14.1 of the Tribunal's Rules provides that the 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. The Tribunal will consider, in light of the particular circumstances of each case, whether deferral is the most fair, just and expeditious way of proceeding with the Application.

7In Baghdasserians v. 674469 Ontario, 2008 HRTO 404, the Tribunal made the following general comments about deferral at paras. 18-19:

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. However, deferral is not automatically invoked simply because the parties are involved in other legal proceedings.

Some of the factors that may be 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 type 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.

8The Supreme Court of Canada has confirmed that human rights tribunals are not the only decision-makers that can decide human rights claims. See Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42. 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. See Tekes v. Markham (Town), 2009 HRTO 1665 at para. 7.

9In its submissions, the organization respondent stated that the Tribunal should defer consideration of the Application because the subject matter of the grievance and the Application arise from the same series of occurrences and address the same issue, namely, the alleged harassment of the applicant. The organization respondent also stated that the applicant can obtain all possible Code remedies through the grievance process. The organization respondent further stated that the applicant had not identified any particular circumstance that should lead the Tribunal to depart from its normal approach with respect to deferral.

10In its submissions, the Union stated that it is advancing the applicant's grievance through the grievance process, and would be meeting with her in mid-July 2013 to review her grievance. However, the Union did not specifically address whether the Tribunal should defer consideration of the Application pending the conclusion of the grievance proceeding.

11In my view, deferral is the most fair, just and expeditious way of proceeding with the Application. There is an ongoing grievance process, which was started before the filing of this Application, and there is a clear overlap between the facts and issues raised in the grievance and those raised in this Application. Furthermore, the arbitrator has the authority to interpret and apply the Code.

12The applicant has not identified any particular circumstance which would cause the Tribunal to depart from its normal approach. Accordingly, the Tribunal orders the deferral of the Application pending the conclusion of the grievance proceeding.

13Where 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).

14I am not seized of this matter.