Shagufta Tahir v. City of Toronto, 2014 HRTO 513

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Shagufta Tahir Applicant

-and-

City of Toronto Respondent

INTERIM DECISION

Adjudicator: Maureen Doyle Date: April 10, 2014 Citation: 2014 HRTO 513 Indexed as: Tahir v. Toronto (City)

WRITTEN SUBMISSIONS

Shagufta Tahir, Applicant Self-represented

City of Toronto, Respondent Amandi Esonwanne, Counsel

Introduction

1This is an Application filed on December 4, 2013 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 applicant indicates in the Application that the facts of the Application are part of a union grievance proceeding that is still in progress, and encloses a copy of grievances filed on her behalf by her union, the Canadian Union of Public Employees Local 79 (the “union”). She indicates that several hearing days have been held in the matter of her grievance and that some hearing days were cancelled. She indicates that several more hearing days are scheduled to take place from April to October 2014.

3On February 5, 2014, the Tribunal sent a Notice of Intent to Defer to the parties, and provided them with the opportunity to make written submissions as to why the consideration of this Application should, or should not be deferred.

4The applicant filed submissions in which she opposes the deferral of consideration of this Application by the Tribunal. She submits that though three grievances were initially filed on her behalf in 2007, her union has withdrawn two and is actively pursuing only the one which grieves a violation of the collective agreement by the respondent in “not maintaining a harassment and discrimination free workplace”. She asserts that the union has withdrawn the grievance which grieves a violation of the collective agreement by the respondent as it “failed to accommodate me with respect to my disabilities”. She makes several complaints about what she feels has been unfair representation from her union and complains about the length of time which the litigation of her grievance has been taking.

5In her Application, the applicant alleges that the respondent failed to accommodate her disability in 2012, and she also states that she has “ongoing issues for accommodations since years 2007 which have not been resolved to date”.

6The respondent filed submissions in which it supports deferral of consideration of this Application by the Tribunal, pending the resolution of related grievance proceedings. It submits that deferral is appropriate because there is an overlap between the Application and the grievance which deals with alleged discrimination and harassment. The respondent does not dispute that the grievance proceedings have been lengthy, but submits that four dates were cancelled due to its counsel’s illness, and one date was cancelled due to the illness of the applicant. Additionally, it submits that the proceedings were prolonged when the applicant refused “to voluntarily disclose relevant documents, necessitating an interlocutory proceeding and Award” and also were prolonged by her challenge to the respondent’s right to substitute a resource person for instructions “which required another mini-hearing to resolve”.

7Included with the respondent’s submissions is an Interim Award from arbitrator John Stout, dated November 17, 2011. In his Award, he orders production of arguably relevant documents including documents which relate to the applicant’s medical condition. In his Award, he notes that the allegations made by the applicant “involve an allegation of harassment and discrimination contrary to the legislative provisions found in the Ontario Human Rights Code”. He also states that the reason he finds the documentation, the applicant’s Employee Health and Rehabilitation Services (EHR) file, to be relevant, is because the respondent “relied on EHR to review medical documentation and provide guidance respecting the accommodation request”, the documents may shed light on why one doctor “provided information that was contrary to the grievor’s family physician about the request for accommodation” and “the documents in the EHR file may shed light on the process undertaken by EHR in reviewing the accommodation request”.

8The 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.

9The 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).

10The 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.

11Though the applicant states that the union is not pursuing her grievance regarding the respondent’s alleged failure to accommodate her disability, given the November 2011 Award of arbitrator Stout regarding production of medical documentation as arguably relevant to the accommodation matter, it appears that facts and issues relating to the respondent’s accommodation of the applicant are before the arbitrator. In her Application, the applicant references “ongoing issues for accommodations since years 2007 which have not been resolved to date”. In this case, therefore, 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.

12While the grievance proceedings appear to have been quite lengthy, the matter is still live and the grievance process has not concluded. Hearing dates have taken place, rulings have been made and further dates are scheduled for this month through October, 2014.

13The Application will therefore be deferred pending the completion of the grievance process.

14The 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.

15I am not seized.