Sandra Edwards v. Toronto Police Services Board and William Blair, 2013 HRTO 1543

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Sandra Edwards Applicant

-and-

Toronto Police Services Board and William Blair Respondents

-and-

Toronto Police Association Affected Party

INTERIM DECISION

Adjudicator: Jay Sengupta Date: September 13, 2013 Citation: 2013 HRTO 1543 Indexed as: Edwards v. Toronto Police Services Board

WRITTEN SUBMISSIONS

Toronto Police Services Board, Respondent

Justin Basinger, Counsel

Introduction

1This is an Application filed under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), alleging discrimination with respect to employment because of disability.

2In her answer to question 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 consideration of her Application until the grievance proceeding is completed.

3On June 24, 2013, the Tribunal's Registrar sent the parties and the applicant's Union a letter, which requested written submissions on the issue of deferral within two weeks.

4Only the respondent Toronto Police Services Board has provided submissions. It takes the position that deferral is appropriate in this case as the substance of the issues in dispute in the Application are the same as those in the grievance filed on January 30, 2013 by the applicant's union, which grievance is still in process. The remedies requested are also substantially the same in both proceedings. The submissions indicate that the parties are in negotiations, which if unsuccessful, may proceed to conciliation negotiations, followed by the possibility of referral to binding arbitration pursuant to s. 123 of the Police Services Act and Article 17 of the Collective Agreement.

5Section 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.

6In 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.

7The Supreme Court of Canada has confirmed that human rights tribunals are not the only decision-makers that can decide human rights claims: 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: Tekes v. Markham (Town), 2009 HRTO 1665 at para. 7.

8In 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, issues and remedies raised in the grievance and those raised in this Application. Furthermore, if the grievance is referred to arbitration, the labour arbitrator will have the authority to interpret and apply the Code to address any allegations of harassment, discrimination and reprisal.

9None of the parties have 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.

10I am not seized of this matter.