Sleiman v. Community Living Oshawa Clarington, 2015 HRTO 1184

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Samar Sleiman

Applicant

-and-

Community Living Oshawa Clarington and Karen Collins

Respondents

INTERIM DECISION

Adjudicator: Dawn J. Kershaw

Date: September 8, 2015

Citation: 2015 HRTO 1184

Indexed as: Sleiman v. Community Living Oshawa Clarington

WRITTEN SUBMISSIONS

Samar Sleiman, Applicant

Self-represented

Community Living Oshawa Clarington and Karen Collins, Respondents

Jacqueline Luksha, Counsel

Introduction

1The purpose of this Interim Decision is to determine whether this Application should be deferred pending the resolution of the grievance filed on behalf of the applicant.

2The applicant alleges that the respondent discriminated against her contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended ("Code"), when it terminated her employment.

3The Tribunal delivered to the parties a Notice of Intent to Defer on July 23, 2015, and sought the parties' submissions. The applicant filed submissions on August 20 and 24, 2015 and the respondents on August 24, 2015.

4The applicant opposes deferral, while the respondents support it.

decision

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). Deferral of an Application seeks to ensure that proceedings dealing with the same facts or issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law. 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 a part of the collective agreement. See Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42. Thus, the Tribunal generally will defer an Application where there is an ongoing grievance under a collective agreement based on the same facts and issues.

6As stated in Melville v. Toronto (City) 2012 HRTO 22:

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.

7The issues in the Application and the grievances overlap to a large extent. Although the applicant denies that the arbitration will address her human rights issues, in fact one of the grievances makes specific reference to her human rights. Allowing the Application to proceed could lead to inconsistent decisions on the facts and/or legal issues raised in the Application and the grievances. As a result, I find it appropriate to defer this Application pending the completion of the grievance proceeding in this matter.

8If the applicant believes, on conclusion of that process, that her human rights issues have not been adequately addressed, she may ask to have her Application brought back on before the Tribunal.

9The parties' attention is drawn to Rules 14.3 and 14.4 of the Tribunal's Rules of Procedure, which address how the Application may be brought back on before the Tribunal, following conclusion of the grievance proceedings. The Rules of Procedure are available on the Tribunal's website, www.hrto.ca under "New Applications".

ORDER

10For the reasons set out above, the Tribunal defers consideration of the Application pending the completion of the grievance proceeding in this matter.