Arruda v. Brookfield Properties Management Corporation, 2014 HRTO 598

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ilda Arruda

Applicant

-and-

Brookfield Properties Management Corporation, DTZ Canada Incorporated (formerly UGL Unicco Facilities Service Canada Company), Compass Canada Support Services Ltd. o/a Eurest Services, and Tony Pereira

Respondents

INTERIM DECISION

Adjudicator: Ken Bhattacharjee

Date: April 29, 2014

Citation: 2014 HRTO 598

Indexed as: Arruda v. Brookfield Properties Management Corporation

WRITTEN SUBMISSIONS

Ilda Arruda, Applicant

Andrew Black, Counsel

DTZ Canada Incorporated (formerly UGL Unicco Facilities Service Canada Company), Respondent

William T. Macco, Counsel

INTRODUCTION

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.

BACKGROUND

2DTZ Canada Incorporated (formerly UGL Unicco Facilities Service Canada Company) (the “respondent DTZ Canada”), which is a cleaning and maintenance service provider, employed the applicant as a cleaner and the individual respondent as a manager at Brookfield Place, which is owned and/or managed by Brookfield Properties Management Corporation (the “respondent Brookfield”).

3The Labourers’ International Union of North America, Local 183 (the “union”) was the bargaining agent for employees, including the applicant, who were employed by the respondent DTZ Canada at Brookfield Place.

4Between April 2010 and October 2013, the applicant was off work to undergo and recover from hip replacement surgery. She returned to work on modified duties on October 15, 2013.

5On November 21, 2013, the union filed a grievance, which alleged, among other things, that the respondent DTZ Canada had violated the collective agreement by failing to accommodate the applicant due to her disability.

6On December 1, 2013, Compass Canada Support Services Ltd. o/a Eurest Services (the “respondent Compass”) replaced the respondent DTZ Canada as the cleaning and maintenance service provider at Brookfield Place. The respondent Compass did not hire the applicant, which effectively ended her employment at Brookfield Place.

7On January 21, 2014, the applicant filed an Application under s. 34 of the the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), which alleged that the respondents discriminated against her with respect to employment because of her disability and subjected her to reprisal. Specifically, she alleged that the respondent DTZ Canada and the individual respondent failed to accommodate her disability-related needs after she returned to work, and that the respondent Compass’s refusal to hire her constituted discrimination because of her disability and a reprisal for filing a discrimination grievance by all the respondents.

8The applicant is being represented by the union’s counsel in the proceeding before this Tribunal.

9On February 3, 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 applicant and the respondent DTZ Canada filed submissions, but the other respondents did not, and the time for doing so has now passed.

ANALYSIS

10Section 45 of the Code provides that the Tribunal may defer an Application in accordance with the Tribunal’s Rules of Procedure. Rule 14.1 of the Tribunal’s Rules 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.

11In 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.

12In its submissions, the respondent DTZ Canada stated that the Tribunal should defer consideration of the Application because the union filed a grievance dated November 21, 2013 claiming that the respondent DTZ Canada failed to accommodate the applicant concerning her disability, and the respondent DTZ Canada is willing to submit this dispute to arbitration.

13In her submissions, the applicant stated that the Tribunal should not defer consideration of the Application because the November 21, 2013 grievance has not been referred to arbitration, the Application before the Tribunal covers broader issues that cannot be encompassed by the grievance process (most importantly, the respondent Compass’s refusal to hire the applicant), and the Application involves other respondents who cannot be part of the grievance process. The applicant stated that deferral would needlessly fracture the legal proceedings, and delay a final resolution of the issues. The applicant also stated that timely adjudication of the Application by the Tribunal is likely to address the core issues underlying both the grievance and the Application, which would render the grievance moot.

14In my view, the Tribunal should not defer consideration of the Application pending the conclusion of the grievance proceeding. On the one hand, there are concurrent grievance and human rights proceedings with respect to the issue of whether the respondent DTZ Canada and the individual respondent failed to accommodate the applicant’s disability-related needs after she returned to work, which raises the risk of inconsistent decisions on facts or law. On the other hand, however, based on the materials before me, it appears that the discrimination and reprisal issues related to the end of the applicant’s employment at Brookfield Place are not, and cannot, be part of the grievance process, and that these issues are linked to the first issue relating to accommodation.

15In these circumstances, it would not be fair, just and expeditious to defer consideration of the entire Application pending the conclusion of the grievance proceeding, or to defer consideration of part of the Application by splitting the issues.

16I am somewhat uncomfortable that the grievance process is still live, but if the grievance proceeds to arbitration and an award is rendered prior to a decision by this Tribunal, the parties or the Tribunal may raise s. 45.1 of the Code, which provides:

The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.

ORDER

17The Tribunal shall not defer consideration of the Application pending the conclusion of the grievance proceeding, and will continue to process the Application in the normal course.

18I am not seized of this matter.