Human Rights Tribunal of Ontario
Between:
Linda Labao Applicant
-and-
Toronto Police Services Board and John Millman Respondents
Interim Decision
Adjudicator: Maureen Doyle Date: April 9, 2014 Citation: 2014 HRTO 473 Indexed as: Labao v. Toronto Police Services Board
Written Submissions
Linda Labao, Applicant Erin Hallock, Counsel
Toronto Police Services Board and John Millman, Respondents Patricia G. Murray, Counsel
1This is an Application filed on December 19, 20013 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). This Interim Decision deals with the issue of whether the Application should be deferred pending the completion of a related grievance proceeding.
2The respondents indicate in the Response that the facts of the Application are part of a union grievance proceeding that is still in progress, and enclose a copy of the grievance filed on the applicant’s behalf by her union, Toronto Police Association (the “union”).
3In addition to filing their Response, in which they deny having discriminated against the applicant contrary to the Code, the respondents filed a Request for Order During Proceedings (RFOP) in which they request that the Tribunal defer consideration of this Application until the resolution of the grievance proceedings.
4The applicant has filed a Reply to the Response and has also filed a Response to the RFOP, in which she objects to the deferral of this matter.
5In her Application, the applicant alleges discrimination in employment on the basis of disability, sexual orientation, and age and she alleges that the respondents reprised against her for the fact that she had filed two previous Applications.
6In her Application, the applicant indicates that she was injured at work in 2008. She alleges that over the years, she has had several periods of absence from work due to her injury and further alleges that when she returned from a medical leave of absence in or about May, 2013, the respondent Toronto Police Services Board (“employer”) provided her with modified work and accommodations for her disability, but she alleges that the accommodation was not appropriate. Among other things, she alleges that she was isolated in the workplace, that the work provided to her was not meaningful or productive, that some of the duties assigned to her exceeded her physical restrictions, and that she had inadequate and uncomfortable accommodation for her need to consume medication. She alleges that she left work sick on May 27, 2013, and alleges that the employer failed to report her subsequent absence to the Workplace Safety and Insurance Board (WSIB) and she was required to use her few remaining sick days and vacation entitlement in order to receive remuneration. She alleges that she has not received any payment from the employer since July 9, 2013 and that her claim for a recurrence has been denied by WSIB. She indicates that the WSIB decision is currently under appeal and that in August 2013, she applied for benefits from the employer’s Central Sick Leave Bank (CSLB) which is provided for in her collective agreement and is similar to a long term disability plan, in that it provides payment to employees who are unable to work due to disability. It is administered by the employer. She alleges that the employer delayed in considering her application for CSLB benefits and that when it did deny her application in late September, 2013, it did not provide adequate reasons. She alleges that the denial was “wholly unjustified”, alleges that she “provided substantial medical documentation” and alleges that the decision to deny her benefits was made by individuals “implicated” in her previous human rights applications. She alleges that at a meeting held on October 31, 2013, the personal respondent Dr. John Millman and representatives of the employer made comments in relation to the decision to deny her CSLB benefits, and she submits that the comments were discriminatory. She also alleges that on November 18, 2013, the employer wrote to her advising that in light of the denial of CSLB benefits, she was expected to report to work on a graduated return to work program on December 2, 2013. She alleges that this was in conflict with the medical documentation on file which indicates that she was unable to return to work. She alleges that her legal representative wrote to the employer on November 27, 2013, stating that she was unable to return to work and enclosing a further medical note. She did not return to work on December 2, 2013 and states that she has not received any further correspondence from her employer regarding return to work or any other matters.
7By way of remedy, the applicant seeks financial compensation for loss of income from May 2013 to the present, general damages and an order that the respondent employer provide her with CSLB benefits from May 2013 and ongoing. She also seeks public interest remedies.
8The grievance provided by the respondents indicates that the applicant’s union filed a grievance on October 22, 2013, grieving the employer’s “failure to provide Laboa with Central Sick Leave Bank benefits pursuant to Labao’s application for same dated August 28th, 2013”. The grievance states that the relief sought is a declaration that the employer violated the collective agreement, an order that it cease the violation, an order that the employer provide the applicant with CSLB benefits from May 31, 2013 and ongoing, and other relief as may be appropriate. Additionally, the respondents provided a November 18, 2013 amendment to the grievance, in which the union seeks to add “new but related violations” of the collective agreement when it alleges discriminatory remarks were made to the applicant at the above-noted meeting about CSLB benefits, as well as the employer’s refusal to communicate with the applicant’s physician and it alleges that the employer is acting capriciously, arbitrarily and in bad faith. Finally, the grievance documentation provided by the respondents includes a November 25, 2013 letter from the union seeking to amend the grievance again by withdrawing the amendment from November 18, 2013 which it calls the “human rights component”.
9The respondent submits that deferral is appropriate in this Application because the applicant’s allegations in the Application and the grievance are substantially identical, and the central issue in both is the employer’s ongoing accommodation of her and her entitlement to and the employer’s provision and/or denial of CSLB benefits. They also note that the remedies sought in the two proceedings are almost identical. In view of the significant overlap, they submit that the Tribunal should defer consideration of this matter pending the completion of the ongoing grievance and arbitration process.
10The applicant submits that the subject matter of the grievance and the Application is different, as the grievance does not address whether the employer adequately accommodated the applicant’s disability in May, 2013, nor does it address comments which it alleges were made by John Millman and representatives of the employer at the October 31, 2013 meeting, which she submits were discriminatory. Further, it alleges that in their administration of CSLB, the respondents discriminated against the applicant on the grounds of disability/perceived disability, sexual orientation, age and/or as reprisal. She submits that there is no reason why the two proceedings cannot proceed in parallel. She submits that issues regarding human rights are not part of her grievance and specifically points out that she requested that the union withdraw the “human rights” aspect to her grievance, leading to the union’s above-noted November 26, 2013 letter. She submits that the nature of the proceedings is different, as it is the union who has carriage of her grievance and she does not have authority over how her grievance is processed, and she also submits that no arbitrator has yet been selected and no arbitration date has yet been set.
11The applicant also submits that “If the Tribunal refused to allow Ms. Labao the opportunity to make such an election to pursue her human rights claims through an Application to the Tribunal, it would cause her significant prejudice and arguably the limitation of her rights under the Code simply because she is a unionized employee”.
12The applicant cites Lessard v. Ontario (Attorney General) 2012 HRTO 1881 and Scruton v. Wabco Freight Car Products 2011 HRTO 922 as precedents where the Tribunal has decided that deferral to another proceeding was not appropriate.
13The 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.
14The 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).
15The 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.
16The grievance, which challenges the employer’s decision not to provide CSLB benefits to the applicant, will address many of the same allegations and issues as contained in the Application. Further, it is to be anticipated that the applicant’s medical evidence and her ability or inability to perform modified work will be considered in the grievance process. To a very significant extent, the remedy the applicant seeks in both her grievance and her Application is identical. I am persuaded that in 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 grievance.
17With respect to the applicant’s submissions that the Application should proceed because to defer it would be unfair to her simply because she is a member of a union or because she does not have carriage of her grievance, or because no arbitrator has been selected and no date for arbitration has been set, the Tribunal has considered similar questions in the past. In Melville v. Toronto (City), 2012 HRTO 22, (“Melville”) the Tribunal stated as follows:
I do not agree that the Tribunal’s policy of deferring to ongoing grievance processes is unjust. The Tribunal’s approach to deferral does not affect the substance of any party’s rights. It is a procedural step, holding the matter in abeyance while another, overlapping process, takes place. The applicant may subsequently proceed at the Tribunal, subject to s. 45.1 of the Code, pursuant to which an application may be dismissed, in whole or in part, where another proceeding has appropriately dealt with the substance of the application.
An individual working under a collective agreement has a choice – he or she can choose not to file or proceed with a grievance and to pursue the application at the Tribunal instead. If the applicant chooses the grievance process and what comes with it, including representation by the union and the enforcement of particular rights under the collective agreement, he or she cannot also proceed with a Tribunal application at the same time. 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.
The applicant argues that labour arbitration should be treated differently from other types of proceedings because the applicant is not formally a party and the union has the final decision about the manner in which the matter moves forward. However, the Tribunal may defer to various processes to which the applicant is not a formal party, including criminal proceedings against a respondent (see for example Miller v. Bernard 2010 HRTO 1488) and professional discipline (see for example Shakir v. Kidron Valley Rehab 2010 HRTO 1310). Moreover, this argument fails to recognize that in general, the law gives exclusive jurisdiction to labour arbitrators where a matter arises expressly or inferentially from the collective agreement, including rights under the Canadian Charter of Rights and Freedoms: Weber v. Ontario Hydro 1995 CanLII 108 (SCC), [1995] 2 S.C.R. 929. The Code departs from those principles by allowing a unionized employee to file a Tribunal application. Against this background, I fail to see how it is unjust that an applicant is permitted to pursue only one avenue at a time.
18I agree with the reasoning in Melville. This matter is still live and the grievance process has not concluded. I am not persuaded that there is anything in this case to warrant deviation from the Tribunal’s general approach of deferring to the grievance process. I am persuaded that it is appropriate to apply the Tribunal’s general approach and this matter is deferred pending the completion of the grievance and arbitration process.
19It is not yet apparent when the applicant’s grievance will be heard. 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.
20The Tribunal directs the parties’ attention to Rules 14.3 and 14.4 which outline the procedure by which the Application may be brought back on after the conclusion of the grievance process.
21I am not seized.
Dated at Toronto, this 9th day of April, 2014.
“Signed By”
__________________________________
Maureen Doyle Vice-chair