HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Heather Towler-Devereaux Applicant
-and-
Brantwood Residential Development Centre Respondent
INTERIM DECISION
Adjudicator: Geneviève Debané Date: March 8, 2013 Citation: 2013 HRTO 397 Indexed as: Towler-Devereaux v. Brantwood Residential Development Centre
WRITTEN SUBMISSIONS
Heather Towler-Devereaux, Applicant Self-represented
Brantwood Residential Development Centre, Respondent Ted Kovacs, Counsel
1This is an Application filed under s. 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 sex. Amongst other things the applicant alleges that the respondent failed to accommodate her pregnancy-related needs. The applicant identified in the Application that there is an ongoing grievance that deals with the facts of the Application but that she does not wish the Application to be deferred.
2In its Response the respondent takes the position that the Application should be deferred pending the conclusion of the grievance arbitration process. The applicant is represented by the Service Employees Local Union, Local 1 Canada (the “Union”) which filed a grievance on behalf of the applicant on May 23, 2012. This grievance states in part, “I grieve that the employer is refusing to accommodate and is in violation of the Human Rights Code.” On January 15, 2013, the respondent referred this grievance to mediation/arbitration.
3On February 13, 2013, the Tribunal issued a Notice of Intent to Defer and sought submissions from the applicant with respect to whether the Application should be deferred.
4Though the applicant filed a Reply to the Response, she did not address the issue of deferral of the Application.
5The Union has received notice of the Application and the Notice of Intent to Defer and has filed no materials with the Tribunal.
Decision
6The 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 (Rule 14.1 of the Tribunal’s Rules of Procedure). The Tribunal must 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.
7Applying these principles to this case, I find that it is appropriate to defer this Application pending the completion of the grievance and arbitration proceedings. The 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.
8In 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. It would not be constructive to have two proceedings consider concurrently the same facts as this may lead to contrary findings and decisions. Therefore, it is most fair, just and expeditious to defer this Application. The Application will therefore be deferred pending the completion of the grievance arbitration proceeding.
9The Tribunal directs the parties’ attention to Rule 14 of the Tribunal’s Rules of Procedure which sets out the procedure if a party wishes to proceed with an application that has been deferred pending the conclusion of another proceeding.
10I am not seized of this matter.
Dated at Toronto, this 8th day of March, 2013.
“Signed by”
Geneviève Debané Vice-chair