Parker v. Mississauga (City), 2013 HRTO 383

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Charlene Parker Applicant

-and-

The Corporation of the City of Mississauga, Dara Marcoccia and Rohan Abbey Respondents

INTERIM DECISION

Adjudicator: Brian Eyolfson Date: March 6, 2013 Citation: 2013 HRTO 383 Indexed as: Parker v. Mississauga (City)

WRITTEN SUBMISSIONS

Charlene Parker, Applicant Self-represented

The Corporation of the City of Mississauga and Dara Marcoccia, Respondents Shana French, Counsel

Rohan Abbey, Respondent Veronique Henry, Counsel

Introduction

1This Application was filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on June 8, 2010, and alleges discrimination and harassment on the basis of disability and sex in employment, and reprisal.

2In an earlier Interim Decision, 2012 HRTO 2333, the Tribunal granted a request brought by the respondents, The Corporation of the City of Mississauga (“the City”) and Dara Marcoccia, with the applicant’s consent, that the hearing dates scheduled for December 19, 20 and 21, 2012 be adjourned. In its Interim Decision, the Tribunal noted that the City and Ms. Marcoccia indicated in their adjournment request that the applicant had filed a workplace grievance which was positioned to proceed to arbitration. In the circumstances, the Tribunal also sought submissions on whether or not it would be appropriate to defer the Application.

3This Interim Decision addresses whether or not it would be appropriate to defer this Application, pending completion of the applicant’s workplace grievance.

DEFERRAL

4The Tribunal may defer consideration of an application on such terms as it may determine and on its own initiative. See Rule 14.1 of the Tribunal’s Rules of Procedure. Deferral of an application ensures that proceedings dealing with the same issues do not run concurrently, raising the possibility of inconsistent decisions on facts or law.

5In their submissions dated December 20, 2012, the City and Ms. Marcoccia submit that the grievance they referred to in their earlier correspondence requesting an adjournment is not based on the same facts and issues as the present Application. They submit therefore that deferral is not appropriate.

6In her submissions received by the Tribunal on December 28, 2012, the applicant submits that the grievance is based on wrongful dismissal, and that she would not have been dismissed had she not filed her Application with the Tribunal alleging discrimination and harassment against her employer, the City. The applicant submits that, despite the appearance of two separate matters, there is a causal link between the two issues. The applicant requests that her Application be deferred.

7In further submissions dated January 11, 2013, the City and Ms. Marcoccia submit that the applicant’s grievance in no way asserts a breach of human rights, nor does it assert reprisal for filing her Application with the Tribunal. They submit that there is no overlap of subject-matter, issues or remedies between the Application and the grievance. They also submit that the parties in the two proceedings are not the same, as the individual respondents in this Application are not parties to the grievance. The City and Ms. Marcoccia also raise concerns regarding delay in these proceedings, noting that this Application was filed on June 8, 2010, and that, while the applicant’s grievance is positioned to proceed to arbitration, neither an arbitrator nor a hearing date have been selected.

8The applicant was subsequently directed to provide a copy of her grievance, which she has now delivered and filed along with other documents. In her grievance dated July 20, 2012, the applicant grieves the termination of her employment as unfair and unjust. A letter to the applicant from the City dated July 19, 2012 indicates that her employment is being terminated following an incident with a customer on March 27, 2012.

9The Tribunal will generally defer an application where there is an ongoing grievance under a collective agreement based on the same facts and issues. In the present case, however, there does not appear to be an ongoing grievance dealing with the same facts and issues as the Application. The applicant alleges in her Application that she was subjected to discrimination and harassment on the basis of disability and sex, including a poisoned work environment, and reprisal, while employed with the City. The applicant’s grievance, on the other hand, concerns the termination of her employment more than two years after her Application with the Tribunal was filed. In the circumstances, there appears to be little possibility, if any, of inconsistent decisions in concurrent proceedings. I find that deferral is not appropriate.

10The Tribunal will be in contact with the parties shortly in order to reschedule the hearing in this matter.