Drummond v. Community Living Ajax Pickering Whitby, 2014 HRTO 244

Human Rights Tribunal of Ontario

Between:

Arlene Drummond Applicant

-and-

Community Living Ajax Pickering Whitby Respondent

Interim Decision

Adjudicator: Brian Eyolfson Date: February 21, 2014 Citation: 2014 HRTO 244 Indexed as: Drummond v. Community Living Ajax Pickering Whitby

Written Submissions

Arlene Drummond, Applicant Self-represented

Community Living Ajax Pickering Whitby, Respondent Paula M. Rusak, Counsel

Canadian Union of Public Employees and its Local 2936, Affected Party Elizabeth Nurse, Counsel

Introduction

1This is an Application filed on June 28, 2013, under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), alleging discrimination and reprisal in the area of employment.

2This Interim Decision addresses whether or not this Application should be deferred.

Deferral

3The Tribunal may defer consideration of an application, on such terms as it may determine, and on its own initiative (Rule 14.1).

4The 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).

5The Supreme Court thus confirmed that human rights tribunals are not the only decision-makers that can decide human rights claims. Where the parties are already engaged in a concurrent legal proceeding in which they are raising the same human rights 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.

6In the present case, the applicant indicated in her Application that she had two outstanding grievances regarding matters raised in the Application. In a Case Assessment Direction ("CAD") dated November 26, 2013, the Tribunal directed the parties and the applicant's union, as an affected party, to file written submissions with respect to whether or not the Application should be deferred pending the completion of the grievance process.

7In correspondence dated December 11, 2013, the applicant's union indicated that the two grievances referred to above were being held in abeyance, but that a third grievance was filed on or about August 12, 2013. The third grievance was referred to arbitration, and a first hearing date was held on September 24, 2013. The union indicated that it was canvassing with the respondent further hearing dates in April 2014.

8In correspondence dated December 16, 2013, the respondent submitted that the Application should be deferred, and, in correspondence dated December 17, 2013, the applicant submitted that the Application should not be deferred.

9In further correspondence dated December 20, 2013, from the applicant's union, the union indicated that the applicant's three grievances had been withdrawn at the request of the applicant. The applicant also confirmed, by correspondence dated January 15, 2014, that she instructed her union to withdraw the three grievances in order to pursue her issue through the Tribunal.

10By correspondence dated January 21, 2014, the respondent indicated that the Tribunal may disregard its submissions made in response to the Tribunal's CAD seeking submissions on the issue of deferral.

11Based on the submissions of the parties and the applicant's union, it appears that the grievances filed on the applicant's behalf have been withdrawn, and that there is no longer any other proceeding to defer to. In the circumstances, I find that deferral is not appropriate.