Burke v. City of Toronto, 2013 HRTO 2070

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Lily Burke

Applicant

-and-

City of Toronto, Mary Lynn Johnston and Raki Khalill

Respondents

INTERIM DECISION

Adjudicator: Brian Eyolfson

Date: December 17, 2013

Citation: 2013 HRTO 2070

Indexed as: Burke v. City of Toronto

Introduction

1This Application was filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on November 29, 2012, and alleges discrimination with respect to employment.

2On March 26, 2013, the respondents filed a Request for an Order During Proceedings (“RFOP”) seeking the following: (i) that the Application be dismissed on the basis that it does not have a reasonable prospect of success; (ii) in the alternative, that the allegations in the Application that occurred more than one year prior to the filing of the Application be dismissed on the basis of delay; and, (iii) in the further alternative, that the Application be placed in abeyance pending the outcome of grievances that were filed by the applicant’s union on her behalf.

3This Interim Decision addresses whether or not this Application should be deferred pending completion of related grievance proceedings.

DEFERRAL

4The 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.

5The 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).

6The 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.

7In the present case, the Tribunal issued a Case Assessment Direction (“CAD”) dated September 17, 2013, directing the parties and the applicant’s union to provide an update as to the status of the applicant’s grievances. The Tribunal also provided the parties and the union with an opportunity to make submissions on whether or not deferral of the Application would be appropriate.

8In response to the Tribunal’s CAD, the applicant’s union explained that the applicant has five outstanding grievances. While the union has not yet decided whether to proceed to arbitration with the grievances, there appears to be a substantial overlap between the facts and human rights issues raised in the Application and those raised in three of the applicant’s grievances. In particular, the applicant’s grievances protesting that she was denied a full-time job vacancy, protesting a 3-day suspension, and claiming that she was denied union representation with respect to the suspension, appear to overlap substantially with the allegations in the Application. The applicant also provided information indicating that, on September 23, 2013, her union requested a “Step 3” meeting with respect to the grievance protesting the denial of a full-time job. In the circumstances, the Application will be deferred pending the completion of the grievance process with respect to these grievances.

9If the applicant believes, on conclusion of the grievance process, that her human rights issues have not been appropriately dealt with, she may ask to have her Application brought back on before the Tribunal. The 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. The parties should note that a request to reactivate must be filed no later than 60 days after the conclusion of the grievance process. If the grievance process has already concluded, the applicant may file a request to reactivate within 60 days of the date of this Interim Decision.

10I am not seized.