Senior v. City of Toronto Bendale Acres Long Term Care Homes and Services, 2014 HRTO 180

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Miriam Senior Applicant

-and-

City of Toronto Bendale Acres Long Term Care Homes and Services, Madge Flemming and Veronica Moore Respondents

INTERIM DECISION

Adjudicator: Paul Aterman Date: February 6, 2014 Citation: 2014 HRTO 180 Indexed as: Senior v. City of Toronto Bendale Acres Long Term Care Homes and Services

WRITTEN SUBMISSIONS

Miriam Senior, Applicant Self-represented

1This Application alleges discrimination with respect to employment because of family status and association with a person identified by a protected ground, contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The applicant worked for the corporate respondent. Her employment was terminated on September 30, 2013. She alleges that discriminatory actions by the respondents precipitated confrontations, that she was wrongly accused of threatening her co-workers and that this led to her termination.

3The applicant is represented by a union. By letter dated January 30, 2014 the union indicates that it is not seeking to intervene in this Application, but wishes to be kept apprised of any developments as it proceeds, and confirms that it has grieved the applicant’s termination.

4The applicant has also been charged with a criminal offence arising out of the events that led to her termination.

5On December 18, 2013 the Tribunal requested that the parties provide submissions on whether consideration of the Application should be deferred pending the resolution of the other proceedings.

6The applicant is the only party to have provided submissions on this issue. She argues that the Tribunal should not defer pending the outcome of the grievance because, although it is proceeding to the third step of the process set out in the collective agreement. She feels that it is moving too slowly. She also says that she no longer has confidence in the union to properly represent her interests.

7In relation to the criminal proceeding she states that charges against her were withdrawn but that she has not yet received any documentation to that effect. The documents she did include with her submissions indicate that she was to appear in criminal court twice in December of 2013 and on January 23, 2014.

8The 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.

9The 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).

10In this case there appears to be a clear overlap between subject matter of the grievance and this Application. They arise out of the same set of facts. There also appears to be an overlap of some of the issues in that the applicant is alleging that discriminatory conduct is at the root of the conflict which led to her termination.

11While the applicant is not satisfied at the speed with which the grievance is being processed, it has proceeded through two steps and is at the third step of the process under the collective agreement. In addition, although the applicant has expressed dissatisfaction at how the union is handling the grievance, it is still proceeding and has not been withdrawn. These provide sufficient reasons to defer consideration of this Application until the grievance is resolved.

12In relation to the criminal proceeding, it appears that there is also some overlap of facts and issues. The scope may be narrower, in that the information was laid by one of the two individual respondents. Nonetheless it appears to arise out of the same incidents at work, and there is potential for the criminal court and the Tribunal to make inconsistent findings of fact if the Tribunal proceeds with the Application while the criminal matter is still outstanding. It appears that the criminal charge is moving forward, insofar as the applicant has already been required to appear to deal with preliminary matters. For these reasons I conclude that the Application should also be deferred until the criminal charge is resolved.

13If, as the applicant indicates, the criminal charge has been withdrawn then she need only provide the respondents and the Tribunal with documents that support what she says and there will be no reason to defer any further in relation to the criminal charge.

order

14The Application will be deferred until the grievance proceeding and the criminal charge are resolved.

15The Tribunal directs the parties’ attention to Rules 14.3 and 14.4, which outline the procedure by which a party may seek to bring the Application back on after the conclusion of the grievance process.