HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Sandra Scullion

Applicant

-and-

Windsor Casino Limited, Joe Moore and Habeeburrahiman Kavangal

Respondents

-and-

CAW-TCA Canada

Intervenor

Interim Decision

Adjudicator: Ena Chadha

Date: May 3, 2013

Citation: 2013 HRTO 743

Indexed as: Scullion v. Windsor Casino Limited

WRITTEN SUBMISSIONS

Sandra Scullion, Applicant

David Deluzio, Counsel

Windsor Casino Limited and Joe Moore, Respondents

Nancy Jummu-Taylor, Counsel

Habeeburrahiman Kavangal, Respondent

Peter K. Hrastovec, Counsel

CAW-TCA Canada, Intervenor

Colette Hooson, Representative

1The applicant filed this Application under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (“Code”), on November 1, 2012, alleging discrimination with respect to employment on the basis of sex. The applicant alleges that she was subjected to sexual harassment in the workplace. In the Application, the applicant noted that a workplace grievance was commenced in relation to the alleged events.

2Individual respondent Kavangal filed a response on December 5, 2012. Kavangal indicated that, although he did not have a copy of the grievance, it would be appropriate for the Tribunal to defer the Application pending the completion of the grievance and, therefore, requested deferral.

3The corporate respondent and individual respondent Moore (collectively described as “the corporate respondent”) filed a joint Response on December 5, 2012. The corporate respondent acknowledged a grievance, dated June 12, 2012, remains outstanding; however, did not support deferral.

4On December 19, 2012, the applicant’s union, CAW-TCA Canada (“the union”), filed a Request to Intervene simply stating it “may be affected by the outcome” of this proceeding.

5The applicant filed a Reply indicating that she consents to deferral; however, the applicant opposed the union’s intervention on the basis that the union provided no other information regarding its request to intervene. The applicant submits that the Tribunal should first deal with the matter of deferral before determining the union’s request to intervene.

6Respondent Kavangal filed a response also opposing the union’s request to intervene on the basis that the union represents the applicant with respect the collective agreement and has no standing before the Tribunal.

7The corporate respondent filed a response stating that it does not object the union’s request to intervene and reiterating that it does not support deferral on the basis that all outstanding issues can be addressed before the Tribunal.

8By way of Case Assessment Direction dated March 26, 2013, the Tribunal directed the union to provide clarification with respect to its position and up to date information regarding the applicant’s workplace grievance. The parties were also provided with an opportunity to file further submissions.

9The union’s submissions clarify that a grievance was filed in June 2012 with respect to the employer’s handling of the applicant’s sexual harassment complaint. The union provided copies of documents related to the grievance. The union notes that the parties engaged in settlement discussions and that, subject to the applicant executing the minutes of settlement, the grievance will be resolved. The union submits that the Application should not be deferred because the grievance is almost settled.

10The applicant filed submissions confirming that she agrees to defer the Application. The corporate respondent maintains its opposition to deferral on the basis that there are no steps currently underway because of the tentative settlement. Respondent Kavangal maintains his opposition to the union’s intervention.

INTERVENTION

11Rule 11.1 of the Tribunal’s Rules of Procedure (“Rules”) provides that:

The Tribunal may allow a person or organization to intervene in any case at any time on such terms as the Tribunal may determine. The Tribunal will determine the extent to which an intervenor will be permitted to participate in a proceeding.

12The Tribunal in Boyce v. Toronto Community Housing Corporation, 2009 HRTO 131 at para. 13, has stated:

A union or association nearly always has an interest in a human rights application brought by an employee in a bargaining unit it represents when the application alleges discrimination in employment. Absent exceptional circumstances, the applicant’s bargaining agent will be granted intervention status in Tribunal proceedings where it requests it.

13The applicant is an employee represented by a bargaining agent. I see no reason to depart from the Tribunal’s established practice as stated in Boyce, above, to grant intervenor status when the applicant is a member of a bargaining unit represented by the union, particularly in the circumstances of this case where there appears to be an outstanding grievance giving rise to settlement discussions between the respondent employer and the union on behalf of the applicant.

DEFERRAL

14The 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). Deferral of an application ensures that proceedings dealing with the same issues do not run concurrently.

15Some factors that have been identified as 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 types 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. See Baghdasserians v. 674469 Ontario, 2008 HRTO 404.

16The Tribunal generally defers applications where the parties are already engaged in a concurrent legal proceeding, particularly when the other proceeding is an on-going grievance under a collective agreement based on the same facts and issues as raised in the Application. In so doing, the Tribunal has relied on Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42, wherein the Supreme Court of Canada confirmed 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.

17The applicant’s grievance deals with her concerns regarding the respondent employer’s investigation of her sexual harassment complaint and, in particular, the timeliness of the employer’s actions. In her Application narrative, the applicant has made similar allegations regarding the employer’s handling of her sexual harassment complaint. It is apparent that the issues raised in the grievance overlap with the concerns alleged in the Application. With respect to the corporate respondent’s concern about the potential for double recovery, the respondents may ask at the hearing on the merits that any compensation or damages previously paid be taken into account.

18As such, I see no basis to depart from the Tribunal’s regular approach to defer an Application where the Application overlaps with an outstanding grievance.

19Accordingly, this Application will be deferred pending the conclusion of the grievance process.

ORDERS

20The Tribunal orders as follows:

i. The union is granted intervenor status and the style of cause is amended accordingly; and

ii. The Application is deferred pending the conclusion of the grievance process.

21Where a party wishes to proceed with an application which has been deferred, the party must make a Request for an Order During Proceedings in accordance with Rule 19 within 60 days after the conclusion of the other proceeding (Rules 14.3 and 14.4).

22I am not seized of this matter.