Lily Burke v. City of Toronto, Mary Lynn Johnston and Raki Khalil, 2014 HRTO 1596

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Lily Burke Applicant

-and-

City of Toronto, Mary Lynn Johnston and Raki Khalil Respondents

INTERIM DECISION

Adjudicator: Jo-Anne Pickel Date: October 29, 2014 Citation: 2014 HRTO 1596 Indexed as: Burke v. Toronto (City)

WRITTEN SUBMISSIONS

Lily Burke, Applicant Self-represented

City of Toronto, Mary Lynn Johnstron and Raki Khalil, Respondents Kerri Kitchura, Counsel

1This Interim Decision addresses whether the applicant’s Applications should be consolidated. It also addresses whether the Tribunal should defer consideration of the second Application she filed with the Tribunal.

2The applicant has filed two Applications alleging that the respondents breached the Human Rights Code, R.S.O. 1990, c. H. 19, as amended (the “Code”). In her first Application (2012-13113-I), the applicant alleged that the respondents discriminated against her contrary to the Code. In her second Application (2014-17878-I), the applicant alleged that the respondents reprised against her for filing her first Application. In addition to filing these two Applications, the applicant has filed six grievances with her union.

3By Interim Decision, 2013 HRTO 2070, the Tribunal deferred consideration of the applicant’s first Application (2012-13113-I) pending the conclusion of the grievance process with respect to her grievances. By Interim Decision, 2014 HRTO 1415, the Tribunal denied the applicant’s request to re-activate her first Application while the grievance process was ongoing.

4On September 26, 2014, the respondent requested that the Tribunal also defer consideration of the applicant’s second Application (2014-17878-I) and that the Tribunal consolidate both of the applicant’s Applications.

5The applicant opposed deferral of Application 2014-17878-I on the basis that her union is allegedly not taking her grievances seriously. However, the applicant also stated in her response that her union’s counsel advised her on October 17, 2014, that the union had referred her grievances to arbitration. The applicant also submitted that none of her grievances refer to the human rights violations raised in her Application.

Analysis

Request to consolidate

6Rule 1.7(d) of the Tribunal’s Rules of Procedure states that, in order to provide for the fair, just and expeditious resolution of any matter before it, the Tribunal may consolidate or hear applications together.

7In Persaud v. Toronto District School Board, 2008 HRTO 25, the Tribunal adopted the decision of the Canadian Human Rights Tribunal in Lattey v. Canadian Pacific Railway, 2002 CanLII 45928 (CHRT), which set out the factors that should be considered in deciding whether to consolidate or hear proceedings together:

(a) The public interest in avoiding a multiplicity of proceedings, including considerations of expense, delay, the convenience of the witnesses, reducing the need for the repetition of evidence, and the risk of inconsistent results;

(b) The potential prejudice to the respondents that could result from a single hearing, including the lengthening of the hearing for each respondent as issues unique to the other respondent are dealt with, and the potential for confusion that may result from the introduction of evidence that may not relate to the allegations specifically involving one respondent or the other; and

(c) Whether there are common issues of fact or law.

8Applying these factors, I find it appropriate for the applicant’s two Applications to be consolidated. The two Applications are connected in that the second alleges that the respondents have reprised against the applicant for having filed the first Application. It is likely that the parties will be relying upon the same evidence in both Applications. Therefore, I find that it is in both the public interest and in the parties’ interest to have the applications consolidated and dealt with together.

Request to defer

9The 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). Deferral of an Application seeks to ensure that proceedings dealing with the same facts or issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law. 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 a part of the collective agreement. See Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42. Thus, the Tribunal will generally defer an Application where there is an ongoing grievance under a collective agreement based on the same facts and issues.

10Although the applicant’s grievances are framed to challenge alleged violations of her collective agreement and not the Code, the facts and issues in the Applications and the grievances overlap. Given my finding that the applicant’s two Applications should be consolidated, I find that the Tribunal should defer consideration of her second Application as it has done with her first Application. I find this particularly appropriate given that the applicant’s union has confirmed with the Tribunal that it has referred the applicant’s grievances to arbitration.

11The parties’ attention is drawn to Rules 14.3 and 14.4 of the Tribunal’s Rules of Procedure, which address how the Application may be brought back on before the Tribunal, following conclusion of the grievance proceedings. The Rules of Procedure are available on the Tribunal’s website, www.hrto.ca under “Law, Rules and Policies”. It should be noted that a party who wishes to reactivate an Application deferred pending the conclusion of another proceeding must file a request with the Tribunal no later than sixty (60) days after the conclusion of the other proceeding.

Order

12For the reasons set out above, the Tribunal orders:

a. Applications 2012-13113-I and 2014-17878-I are consolidated and will be dealt with together;

b. The Tribunal defers consideration of both Applications until the conclusion of the arbitration of the grievances filed on behalf of the applicant.