O.L. v. The Toronto Sun, 2013 HRTO 748

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

O.L.

Applicant

-and-

The Toronto Sun, Sun Media Corp, and Quebecor Inc., Jennifer Scriven, Chris Krygiel, Chris Harrison, Mike Power, James Wallace, Kevin Hann, Jonathan Kingstone and Lisa Lisle

Respondents

INTERIM DECISION

Adjudicator: Alison Renton

Date: May 3, 2013

Citation: 2013 HRTO 748

Indexed as: O.L. v. The Toronto Sun

WRITTEN SUBMISSIONS

O.L., Applicant

Self-represented

The Toronto Sun, Sun Media Corp, and Quebecor Inc., Jennifer Scriven, Chris Krygiel, Chris Harrison, Mike Power, James Wallace, Kevin Hann, Jonathan Kingstone and Lisa Lisle, Respondents

Richard J. Charney, Counsel

Communication, Energy & Paperworkers Union of Canada, Local 87-M Southern Ontario Newsmedia Guild, Union

Howard Law, Representative

Introduction

1This is an Application filed on December 12, 2012 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 race, colour, ethnic origin, disability, sex, and reprisal. In her Application, the applicant identified that the issue of her termination was also the subject of a grievance which was scheduled to be determined by an arbitrator.

2The Tribunal sent the parties and the applicant’s bargaining agent, Communication, Energy & Paperworkers Union of Canada, Local 87-M Southern Ontario Newsmedia Guild (“the union”) a Notice of Intent to Defer (“the Notice”). The Tribunal advised that it had determined that it may be appropriate to defer the consideration of the Application pending the resolution of another legal proceeding dealing with the subject-matter of the Application and sought the parties’ and the union’s submissions as to why the consideration of the Application should, or should not, be deferred. All of the parties and the union have filed submissions. The Notice also indicated that the respondents were not required, at this point, to file Responses.

3Subsequent to the issuance of the Notice, the respondents filed a Request for Order During Proceedings (“RFOP”) in which it requested that: 1) the corporate respondent’s name be amended; 2) the personal respondents and the respondent Quebecor Inc. be removed as respondents; 3) the dismissal of the allegations on the basis of sex, race, ethnic origin, colour and reprisal on the grounds that the Application discloses no prima facie case to substantiate those allegations, or, alternatively, that the allegations pertaining to these grounds have no reasonable prospect of success; and 4) that the untimely allegations be struck from the Application. The applicant filed a Response to the RFOP.

4For the reasons set out below, the issues raised in the RFOP will not be addressed by the Tribunal at this point.

the parties’ and the union’s position on deferral

5The applicant opposes deferral. She submits that not all of the issues raised in her Application are before the arbitrator, nor are all the remedies that she is seeking in the Application. She submits that the corporate respondent is undergoing a massive restructuring and is laying off a number of employees. She expresses concern that she will be unable to track down witnesses, that documentation may become lost or destroyed and that fear of losing their jobs may turn her witnesses hostile. In this regard, she submits that it would be fairest to proceed with her Application.

6The respondents submit that the deferral is appropriate in the circumstances. The applicant’s termination grievance has been referred to arbitration with a number of arbitration dates already scheduled for 2013 and that the arbitration will result in determinations on many of the same issued as those raised in the Application. Allowing both the grievance and the Application to proceed at the same time and both consider whether or not the applicant’s termination was discriminatory give rise to a material risk of inconsistent decisions by the arbitrator and the Tribunal. It would also prejudice the respondents as they would have to defend against the same allegations of discrimination on the basis of disability arising from the same facts. The respondents note that the applicant is seeking the same remedy, reinstatement, in both her grievance and her Application.

7With respect to the applicant’s anticipation that she may be unable to “track down” her witnesses at a later time, the respondents note that many of the allegations in the Application are untimely. They submit that any prejudice the applicant may suffer as a result of the deferral is attributable to her untimely filing of the Application.

8The union submits that it takes no position on the issue of deferral.

determination and analysis

9The 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.

10The 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).

11The 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.

12In 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, even if not all the allegations in the Application are raised in the arbitration process. The applicant is seeking the same remedy, reinstatement, in both proceedings. The matter is still live, the grievance procedure has not concluded, and there are a number of arbitration dates scheduled in 2013.

13On conclusion of the arbitration process, if the applicant believes that her human rights issues have not been adequately addressed, she may ask to have her Application brought back on before the Tribunal.

14The Application is therefore deferred pending completion of the arbitration process.

15The 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.

16The respondents’ RFOP, including the correct identification of the corporate respondent, and the applicant’s Response to the RFOP will be considered by the Tribunal if the Application is re-activated.