HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Nicole Hoffman
Applicant
-and-
Michael O’Hara and Nick Van Veen
Respondent
INTERIM DECISION
Adjudicator: Geneviève Debané
Indexed as: Hoffman v. O’Hara
WRITTEN SUBMISSIONS
Nicole Hoffman, Applicant
Self-represented
Michael O’Hara and Nick Van Veen, Respondents
Justin Basinger, Counsel
1This Application alleges discrimination with respect to employment contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended. Though the applicant is employed with the City of Toronto she has filed the Application against the two named individual respondents who are her managers. The Application alleges that they imposed three disciplinary suspensions on her which are contrary to the Code. The applicant has initiated through her Union three grievances.
2On August 11, 2015, the Tribunal issued a Notice of Intent to Defer seeking submissions from the parties on this issue.
3The respondents advised that it is appropriate to defer the Application pending the conclusion of the grievances that have been filed on behalf of the applicant.
4The applicant objects to deferral of the Application because she takes the position that the grievances are only with respect to disciplinary issues.
5The applicant’s Union has filed no submissions with respect to the issue of deferral.
Decision
6In Baghdasserians v. 674469 Ontario, 2008 HRTO 404, the Tribunal made the following 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.
7The 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).
8In this case it is clear that the applicant has filed three grievances with respect to discipline that has been imposed on her. In the Application she takes the position that these disciplines are discriminatory and/or harassing. It is therefore apparent that there is substantial overlap between the facts and allegations covered by the Application and those referred to in the grievances. It would not be constructive to have two proceedings consider concurrently the same facts as this may lead to contrary findings and decisions. Therefore, I find it is most fair, just and expeditious to defer this Application.
9Accordingly, the Application is deferred pending the conclusion of the grievance arbitration proceeding. The Tribunal directs the parties’ attention to Rule 14 of the Tribunal’s Rules of Procedure 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 23rd day of September, 2015.
“Signed by”
Geneviève Debané
Vice-chair