Human Rights Tribunal of Ontario
B E T W E E N:
Shantelle Mulholland Applicant
-and-
Toronto Transit Commission and Kathy Cuschieri Respondents
-and-
Amalgamated Transit Union, Local 113 Intervenor
INTERIM DECISION
Adjudicator: Geneviève Debané Date: June 27, 2014 Citation: 2014 HRTO 947 Indexed as: Mulholland v. Toronto Transit Commission
WRITTEN SUBMISSIONS
Shantelle Mulholland, Applicant Self-represented
Toronto Transit Commission and Kathy Cuschieri, Respondent Marni Tolensky, Counsel
Amalgamated Transit Union, Local 113, Intervenor Ian J. Fellows, Counsel
1This Application alleges discrimination with respect to employment contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code").
2On May 12, 2014, the Tribunal issued a Notice of Intent to Defer.
3The respondent filed submissions in support of deferral and the applicant filed submissions opposing the deferral. The Intervenor takes no position on the issue of deferral.
Decision
4In her submissions the applicant opposes the deferral of the Application because the arbitration hearing can take years to conclude.
5The 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 (Rule 14.1 of the Tribunal's Rules of Procedure). The Tribunal must 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.
6Applying these principles to this case, I find that it is appropriate to defer this Application pending the completion of the grievance and arbitration proceedings. The 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).
7In 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. It would not be constructive to have two proceedings consider concurrently the same facts as this may lead to contrary findings and decisions.
8Therefore, it is most fair, just and expeditious to defer this Application. The Application will therefore be deferred pending the completion of the grievance arbitration proceeding.
9The Tribunal directs the parties' attention to Rule 14 which sets out the procedure if a party wishes to proceed with an Application that has been deferred pending the conclusion of another proceeding.
10I am not seized.
Dated at Toronto, this 27th day of June, 2014.
"Signed By"
Geneviève Debané Vice-chair