Shari Sookhai v. Enbridge Gas Distribution, 2014 HRTO 478

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Shari Sookhai

Applicant

-and-

Enbridge Gas Distribution

Respondent

INTERIM DECISION

Adjudicator: Ken Bhattacharjee

Date: April 7, 2014

Citation: 2014 HRTO 478

Indexed as: Sookhai v. Enbridge Gas Distribution

WRITTEN SUBMISSIONS

Shari Sookhai, Applicant

J. James Nyman, Counsel

Enbridge Gas Distribution, Respondent

Karen R. Bock, Counsel

Unifor, Local 975, Union

J. James Nyman, Counsel

1The purpose of this Interim Decision is to decide whether the Tribunal should defer consideration of the Application pending the conclusion of a grievance proceeding.

2The applicant is employed by the respondent, and is a member of Unifor, Local 975 (the “union”).

3In late October 2013, the union filed a grievance on the applicant’s behalf, which alleged, among other things, that the respondent had violated and continues to violate the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) by discriminating against her and failing to provide her with a harassment free workplace.

4On January 7, 2014, the applicant filed an Application with this Tribunal under s. 34 of the Code, which alleged that the respondent harassed and discriminated against her with respect to employment.

5On January 29, 2014, the Tribunal’s Registrar issued a Notice of Intent to Defer, which requested written submissions from the parties and the union on the issue of whether it is appropriate for the Tribunal to defer consideration of the Application pending the resolution of another legal proceeding dealing with the subject-matter of the Application. The parties and the union filed submissions.

6Section 45 of the Code provides that the Tribunal may defer an Application in accordance with the Tribunal’s Rules. Rule 14.1 of the Tribunal’s Rules of Procedure provides that the Tribunal may defer consideration of an Application, on such terms as it may determine, on its own initiative, or at the request of any party. The Tribunal will consider, in light of the particular circumstances of each case, whether deferral is the most fair, just and expeditious way of proceeding with the Application.

7In Baghdasserians v. 674469 Ontario, 2008 HRTO 404, the Tribunal made the following general comments about deferral at paras. 18-19:

Deferral of an application ensures that proceedings dealing with the same issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law. However, deferral is not automatically invoked simply because the parties are involved in other legal proceedings.

Some of the factors that may be relevant in deciding whether to defer consideration of an application before the Tribunal are the subject matter of the other proceeding, the nature of the other proceeding, the type 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.

8The Supreme Court of Canada has confirmed that human rights tribunals are not the only decision-makers that can decide human rights claims. See Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42. 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. See Tekes v. Markham (Town), 2009 HRTO 1665 at para. 7.

9In my view, deferral is the most fair, just and expeditious way of proceeding with the Application. There is no dispute between the parties that the grievance was filed before the human rights Application was filed, the subject matter of the grievance and the Application are the same, the grievance has been referred to arbitration and will be heard on November 5, 2014, and the arbitrator has the authority to interpret and apply the Code. These factors all weigh in favour of deferral.

10In his submissions, the applicant stated that the Tribunal should not defer consideration of the Application because in the grievance proceeding, the respondent has raised two preliminary issues, which are designed to preclude the grievance from being heard on its merits, and it has also asserted that the events encompassed by the grievance do not include the totality of events encompassed by the Application.

11In its submissions, the union stated that it agrees with the applicant’s submissions.

12In its submissions, the respondent stated that the Tribunal should defer consideration of the Application. The respondent admitted that it may raise preliminary issues and objections with the arbitrator, but it stated that it is not unusual for the parties to an arbitration to raise such issues, and the fact that such issues may be raised does not alter in any way the substantive issues in dispute.

13I agree with the respondent’s submissions. In my view, the applicant has not identified a compelling circumstance which would cause the Tribunal to depart from its normal approach. Accordingly, the Tribunal orders the deferral of the Application pending the conclusion of the grievance proceeding.

14Pursuant to Rules 14.3 and 14.4 of the Tribunal’s Rules, where a party wishes to proceed with an Application which has been deferred, the party must file a Request for an Order During Proceedings (Form 10) within 60 days after the conclusion of the other proceeding. The Tribunal’s Rules and Forms can be found on its website.

15I am not seized of this matter.