Heaney v. Toronto (City), 2014 HRTO 46

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Melissa Heaney Applicant

-and-

City of Toronto Parks, Forestry & Recreation Respondent

-and-

Canadian Union of Public Employees, Local 79 Intervenor

INTERIM DECISION

Adjudicator: Alison Renton Date: January 13, 2014 Citation: 2014 HRTO 46 Indexed as: Heaney v. Toronto (City)

WRITTEN SUBMISSIONS

Melissa Heaney, Applicant No submissions filed

City of Toronto Parks, Forestry & Recreation, Respondent Michael Martosh, Counsel

Canadian Union of Public Employees, Local 79, Intervenor Melissa Kronick, Counsel

1This is an Application filed under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of disability and specifically the respondent’s failure to accommodate her. She also filed grievances through her union, Canadian Union of Public Employees, Local 79 (“the union”) pertaining to this issue.

2This Interim Decision addresses two issues: the union’s Request to Intervene and the respondent’s Request for Order During Proceedings (“RFOP”) requesting that the Tribunal defer the Application pending completion of the grievance process.

request to intervene

3The union filed a Request to Intervene in this proceeding. Neither the applicant nor the respondent has filed submissions in response to the union’s request and the time for doing so has elapsed.

4The Tribunal has held in many cases that a union almost always has an interest in a human rights application involving a member, and unless there are exceptional circumstances, the Tribunal will grant it intervenor status when requested. The union in this case is the bargaining agent for the applicant and the Application raises allegations about the accommodation process within the workplace and details some interactions she had with representatives from the union.

5The union’s Request to Intervene is granted.

deferral

6The respondent filed a RFOP, along with its Response, in which it requests that the Tribunal defer the Application because the allegations contained in the grievances and the Application overlap. Neither the applicant nor the union has filed a Response to the RFOP and the applicant has not filed a Reply to the Response.

7However, the applicant indicates in the Application that the facts of the Application are part of several grievances, copies of which she provided. She believes that her grievances are not being pursued by the union.

8In the union’s Request to Intervene, it submits that the grievance is still active. It attached copies of letters from the respondent in relation to grievance meetings that were held and submitted that the next step was to proceed to a step 3 grievance meeting. It noted that if the grievances were not resolved at the step 3 grievance meeting, then the union’s grievance committee would determine whether the grievances should proceed to arbitration.

9In the respondent’s RFOP and Response, it too notes that grievance meetings have been held and that the grievances remain active.

10The 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.

11The 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).

12The 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.

13In this case, it is apparent that there is substantial overlap between the facts and human rights issues covered by the Application and those referred to in the grievances. The matter is still live and the grievance process has not concluded. It is not yet apparent whether or not the applicant’s grievance will be referred to arbitration. But if the applicant believes, on conclusion of the process, that her human rights issues have not been adequately addressed, she may ask to have her Application brought back on before the Tribunal.

14The Application will therefore be deferred pending the completion of the grievance process.

15The Tribunal directs the parties’ attention to Rules 14.3 and 14.4 of the Tribunal’s Rules of Procedure which outline the procedure by which the Application may be brought back on after the conclusion of the grievance process. In addition to other requirements, Rule 14.4 requires that a request to proceed under Rule 14.3 must be made no later than 60 days after the conclusion of the other proceeding. The Tribunal’s Rules are found on its website at www.hrto.ca.

16I am not seized with this matter.