Alma Clarke-Royer v. City of Toronto, 2013 HRTO 787

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Alma Clarke-Royer

Applicant

-and-

City of Toronto

Respondent

INTERIM DECISION

Adjudicator: Geneviève Debané

Date: May 10, 2013

Citation: 2013 HRTO 787

Indexed as: Clarke-Royer v. Toronto (City)

WRITTEN SUBMISSIONS

Alma Clarke-Royer, Applicant

Jamie McGinnis, Counsel

City of Toronto, Respondent

Heather Crisp, 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.

2On March 25, 2013, the respondent filed a Response seeking the deferral of the Application pending the conclusion of the grievance and arbitration proceeding. The respondent takes the position that the Canadian Union of Public Employees, local 79 (the “Union”) has filed at least three grievances that remain outstanding including that she was improperly suspended for five days, was denied union representation and that the respondent has failed to maintain a workplace free of harassment and discrimination. The respondent asserts that the three grievances have recently been heard at Step 2 of the grievance procedure.

3The applicant takes the position that all three grievances were filed on February 27, 2012 and that the Union has not kept her apprised of any steps in the grievance process and that therefore it is not appropriate to defer the Application.

4The Union has had notice of the Application and has not filed any submissions.

Decision

5The 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.

6In Baghdasserians v. 674469 Ontario, [2008 HRTO 404 2008 HRTO 404, the Tribunal made the following general comments about deferral at paras. 18-19:]

Deferral of an application ensures that proceedings dealing with the same issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law. However, deferral is not automatically invoked simply because the parties are involved in other legal proceedings.

Some of the factors that may be 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 type 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.

7The 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, 2003 SCC 42).

8In this case, it is apparent that there is substantial overlap between the facts and allegations covered by the Application and those referred to in the grievances. It would not be constructive to have two proceedings consider concurrently the same facts as this may lead to contrary findings and decisions. I also note that in this matter, the arbitrator will have the jurisdiction to address all claims, including alleged violations of the collective agreement. Therefore, I find it is most fair, just and expeditious to defer this Application. The Application will be deferred pending the completion of the grievance and arbitration process. With respect to the applicant’s allegations that the Union is not keeping her apprised of the status of the grievances she must address this issue with her union. However, if the grievances are not being dealt with in a diligent manner in the futur then the applicant can bring a request to reactivate the Application, and the Tribunal will base its decision to defer based on the circumstances before it at that time.

9It is not necessary for the Tribunal to address the respondents’ other requests at this time. In the event that this Application is reactivated by the Tribunal the respondents can renew their requests at that time.

10The Tribunal directs the parties’ attention to Rule 14 which sets out the procedure if a party wishes to proceed with an Application that has been deferred pending the conclusion of another proceeding.

Dated at Toronto, this 10^th day of May, 2013.

“signed by”

Geneviève Debané

Vice-chair