Joanne Gastaldini v. City of Toronto, Lynn Connolly, George Serkhanian and Mary-Anne Bedard, 2014 HRTO 239

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Joanne Gastaldini Applicant

-and-

City of Toronto, Lynn Connolly, George Serkhanian and Mary-Anne Bedard Respondents

INTERIM DECISION

Adjudicator: Dawn J. Kershaw
Date: February 21, 2014
Citation: 2014 HRTO 239
Indexed as: Gastaldini v. Toronto (City)

WRITTEN SUBMISSIONS

City of Toronto, Lynn Connolly, George Serkhanian and Mary-Anne Bedard, Respondents

Justin Basinger, Counsel

Introduction

1This Application alleges discrimination with respect to employment because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2On January 3, 2014, the respondents filed their Response and requested that the Application be deferred because the applicant, on October 24, 2012, filed a grievance dealing with the same issues as in the Application.

3The applicant was to file her Reply and submissions with respect to deferral by January 20, 2014, which was extended to February 10, 2014. The applicant filed a Reply but did not make any submissions with respect to the respondents’ request for deferral, and the time for doing so has now passed.

decision and analysis

4The Application is deferred pending resolution of the outstanding grievance.

5The Tribunal may defer consideration of an application on such terms as it may determine, on its own initiative or at the request of a party (Rule 14.1). 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 Tribunal will generally defer an application where there is an ongoing grievance under a collective agreement based on the same facts and issues. However, the Tribunal must also consider whether deferral is the most fair, just and expeditious way of proceeding with the application.

6Some factors that have been considered in deciding whether to defer are: the subject matter of the other proceeding; the nature of the other proceeding; the types 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. See Baghdasserians v. 674469 Ontario, 2008 HRTO 404.

7As stated in Melville v. Toronto (City), 2012 HRTO 22 at para. 8:

(…) Deferral avoids two simultaneous proceedings that may result in conflicting determinations, ensures that the respondent need not be actively defending the same matter in two legal proceedings at the same time, and focuses the Tribunal’s limited resources on cases where it is the only process being pursued. In my view, it is consistent with the Tribunal’s mandate to interpret its rules in a fair, just and expeditious manner to defer a case when a grievance is ongoing, whether or not that grievance has yet been referred to arbitration. The grievance process is a stage in dispute resolution before the matter is referred to an independent third party, but that does not mean that there is no proceeding ongoing. Fairness supports avoiding the duplication of proceedings.

8The respondents provided a copy of the grievance in which the applicant requests:

a. a declaration that the respondent, the City of Toronto, has violated the Code;

b. an order that the City comply with the Code; and

c. an order that the City accommodate the applicant by finding her a position suitable for her disabilities.

9The respondents assert that the issues raised and the remedies sought in the grievance are the same as those raised in the Application.

10Both the Application and the grievance relate to the accommodation of the applicant’s medical condition and restrictions. Since the issues in the Application and the grievance overlap, proceeding with the Application at the Tribunal could very well lead to inconsistent decisions on the facts and/or legal issues raised in the Application and the grievances. The primary purpose of deferring an application is to avoid such potential inconsistency.

11I find that, in all of the circumstances, deferring the Application is appropriate. It will be the most fair and just way of proceeding. The respondents have been attempting to have the grievance expedited, failing only because the Union has requested that the grievance not proceed until the applicant returns to work from her leave. Once she returns, a step meeting will take place. If that fails, both parties may agree to mediation or the grievance may be referred to arbitration. This will be the most expeditious way of proceeding once the applicant returns to work. The fact that the grievance has not yet been referred to arbitration is not determinative of the issue in my view.

order

12The Application is deferred pending the completion of the grievance and arbitration process.

13The 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 process.