Sonego v. Community Living Thunder Bay, 2013 HRTO 749

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Lori Lynn Sonego Applicant

-and-

Community Living Thunder Bay and Ontario Public Services Employees Union (OPSEU) Respondents

INTERIM DECISION

Adjudicator: Kathleen Martin Date: May 3, 2013 Citation: 2013 HRTO 749 Indexed as: Sonego v. Community Living Thunder Bay

WRITTEN SUBMISSIONS

Lori Lynn Sonego, Applicant Self-represented

Community Living Thunder Bay, Respondent Martin A. Smith, Counsel

Ontario Public Services Employees Union, Respondent Adrienne Liang, Counsel

1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. c. H.19, alleging discrimination in employment on the basis of sex and sexual solicitation or advances. This Interim Decision addresses whether or not the Application should be deferred pending the conclusion of a related grievance.

Background

2The Application arises out of the applicant’s employment with Community Living Thunder Bay (“Community Living”). The union is the applicant’s bargaining agent in respect of her employment.

3Among other things, the applicant alleges that she was discriminated against in her employment when she was sexually harassed by a co-worker. The applicant alleges that Community Living was aware of the co-worker’s harassment of her and others and covered it up and the union protected the co-worker’s job. The applicant states that Community Living has “declined” her hours of work and placed her in a position of danger where she is being bullied when the applicant works shifts for other staff.

4Prior to the deadline for filing responses, the applicant filed a Request for Order During Proceedings (Form 10) seeking to amend her Application to add particulars and “evidence of reprisal”. The applicant alleges that she was suspended for filing an application at the Tribunal. The applicant relies on documents in support of her request that do not appear to be in her possession.

5The Union has filed a Response. In its Response, the union submits that the Application does not disclose a prima facie case of discrimination by the union within the meaning of the Code and therefore it should be dismissed in its entirety against the union. In the alternative, the union seeks deferral of the Application pending the conclusion of the grievance about the same issues raised in the Application.

6A copy of the grievance dated December 11, 2012 is attached to the union’s Response. The grievance grieves “the employer is ignoring me, bypassing me for shifts, called for shifts that I am unavailable…forcing me to deny shifts”. The grievance also grieves about the failure to provide the applicant with a safe and healthy workplace and being harassed for putting in a formal complaint. As a remedy the grievance seeks lost wages and damages.

7A copy of the Responses was delivered to the applicant. The applicant was directed to file a reply and include complete submissions in response to the request to defer.

8The applicant filed a Reply. The applicant opposes deferral for the stated reason that there is “no other decision maker at this time”. The applicant states that deferral should be denied at this time or “until they have agreed to cooperate and assist” the applicant in the matter with Community Living. In replying to the union’s Response on the merits, the applicant states: “In [sic] states in OPSEUs response that I alleged they discriminated against me: I stated that Community Living has discriminated against me. I only state that OPSEU is not assisting me”.

9The respondent Community Living has also filed submissions opposing deferral. While acknowledging that the Tribunal will typically defer an Application to a related grievance, Community Living states that this is not a typical Application due to the inclusion of the union as a party. In this respect, the respondent relies on the Tribunal’s decision in Davis v. United Food & Commercial Workers Canada, Local 333 2010 HRTO 394 where the Tribunal declined to defer to a related grievance proceeding where there were allegations of discrimination being made against a union.

Analysis

10The 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.

11Some of the factors that may be relevant in deciding whether to defer consideration of an application are the subject matter of the other proceeding, the nature of the other proceeding, the type of remedies available in the other proceeding and whether it would be fair overall to the parties to defer the Application, having regard to the status of each proceeding and the steps taken to pursue them.

12In the case of grievances, 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. However, where the facts and issues are not identical, the Tribunal must still consider whether deferral makes sense in the circumstances having regard to a consideration of all the factors.

13In my view it is appropriate to defer this Application.

14The parties do not appear to dispute that the grievance proceeding deals with the same or at least substantially the same facts and issues. Further, there is no issue that the arbitrator has the jurisdiction to hear and determine human rights issues (See Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42).

15The primary reason that the respondent Community Living advances in opposition to deferral is the inclusion of the union as a party. However, in this case, while the union is presently a party respondent, it appears that the basis for their inclusion may be questionable. In particular, the applicant clarifies in the Reply that her complaint is that Community Living discriminated against her and that the union “failed to assist her”. Based on this Reply, there is a legitimate issue as to whether the union is properly included as a respondent. As such, I find this case distinguishable from Davis, supra, in which there were distinct allegations of discrimination being made against a union respondent.

16Finally, I note that the grievance has been referred to arbitration, an arbitrator has been selected and the parties are in the process of canvassing dates with the arbitrator. Thus the grievance would appear to be at the same, if not a more advanced stage, to that of the Application. These particulars would appear to address at least some of the applicant’s concerns as well as supporting the exercise of my discretion to defer.

17In the circumstances, the Application will be deferred pending the completion of the grievance process.

18The 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. A request to proceed under Rule 14.3 must be filed no later than 60 days after the conclusion of the grievance process.

19I am not seized.