Sharma-Sajan v. Humber Institute of Technology & Advanced Learning, 2014 HRTO 1136

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Prabhashanie Sharma-Sajan

Applicant

-and-

Humber Institute of Technology & Advanced Learning

Respondent

-and-

Ontario Public Service Employees Union

Affected Party

INTERIM DECISION

Adjudicator: David Muir Date: July 30, 2014 Citation: 2014 HRTO 1136 Indexed as: Sharma-Sajan v. Humber Institute of Technology & Advanced Learning

1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of ancestry, disability, ethnic origin, gender expression, gender identity, place or origin and sex.

2On June 16, 2014 the Tribunal issued a Notice of Intent to Defer (NOID) this Application pursuant to s. 45 of the Code pending the conclusion of a grievance arbitration related to the same facts and issues as are raised in the Application.

3The applicant opposes deferral. The applicant argues that the issues of discrimination raised in the Application are not raised in the grievance. The applicant also argued that the open public forum of the Tribunal is to be preferred over the closed and private grievance arbitration process. The respondent is in favour of deferral arguing that there is significant overlap between the issues raised in the two proceedings.

4The 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.

5However the Tribunal has generally deferred applications where there is an ongoing grievance under a collective agreement based on the same facts. 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).

6In any case where the parties are already engaged in a concurrent legal proceeding in which they are raising the same 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.

7In this case, it is apparent that there is substantial overlap between the facts and issues covered by the Application and those referred to in the grievance. The applicant does not dispute that the same facts are in play in the two proceeding but argues essentially that a different legal argument is being made about those facts. In my view this is sufficient to support deferral – one of the important reasons to defer being to avoid different conclusions about the facts in two concurrent proceedings.

8The Application will therefore be deferred pending the completion of the grievance process.

9The 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. The other matters raised by the respondent and the affected party will be dealt with by the Tribunal if the Application is brought back on.

10I am not seized of this case.