HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Anu Kalra
Applicant
-and-
City of Toronto, Susan Knowles and Donalda McCabe
Respondents
INTERIM DECISION
Adjudicator: Maureen Doyle
Date: August 1, 2013
Citation: 2013 HRTO 1342
Indexed as: Kalra v. Toronto (City)
WRITTEN SUBMISSIONS
Anu Kalra, Applicant
No Submissions
City Of Toronto, Susan Knowles and Donalda Mccabe, Respondents
Zoya Trofimenko, Counsel
Introduction
1This is an Application filed on May 8, 2013 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 indicates in the Application that the facts of the Application are part of a union grievance proceeding that is still in progress, and she provides a copy of two grievances filed on her behalf by her union, Canadian Union of Public Employees, Local 79 (the “union”), regarding suspensions she received.
3On June 24, 2013, the Tribunal sent a Notice of Intent to Defer to the parties and directed them to make written submissions no later than 30 days from June 24, 2013, regarding why or why not consideration of this Application should be deferred.
4The respondents filed submissions on July 16, 2013. The respondents also provided a copy of another grievance filed on her behalf by her union regarding the termination of her employment. The respondents submit that deferral of consideration of this Application, pending the completion of the grievance process, is appropriate. They submit that the substance of the Application and of the grievances, namely the events leading up to her suspension and termination, is the same. The remedies she seeks are similar. They note that the collective agreement contains a “No Discrimination” clause which refers to the Code and they note that labour relations Arbitrators have the jurisdiction to apply the Code. They advised that the grievances are currently proceeding through the grievance process in accordance with the collective agreement.
5The applicant has not filed any submissions regarding the issue of deferral.
6The 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.
7The 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).
8The 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.
9In 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. If the applicant believes, on conclusion of the process, that her human rights issues have not been adequately addressed, she may ask to have her Application brought back on before the Tribunal.
10The Application will therefore be deferred pending the completion of the grievance process.
11The 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.
Dated at Toronto, this 1st day of August, 2013.
“signed by”
Maureen Doyle
Vice-chair```