Sherry-Ann Quashie v. City of Toronto, 2015 HRTO 1386

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Sherry-Ann Quashie
Applicant

-and-

City of Toronto
Respondent

INTERIM DECISION

Adjudicator: Leslie Reaume
Date: October 19, 2015
Citation: 2015 HRTO 1386
Indexed as: Quashie v. Toronto (City)

WRITTEN SUBMISSIONS

Sherry-Ann Quashie, Applicant
Self-represented

City of Toronto, Respondent
Cara Gibbons, Counsel

1This Interim Decision explains why the Tribunal is deferring consideration of this Application until the conclusion of a grievance proceeding.

2The applicant filed an earlier Application (2014-17085-I) (the “first Application”) against the same respondents alleging reprisal and discrimination with respect to employment because of ethnic origin, disability, creed and sex contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

3The first Application was deferred by Interim Decision of the Tribunal dated June 23, 2014 (2014 HRTO 924). The Tribunal asked for a status report from the parties in March, 2015. The Tribunal was advised that the grievance proceeding was still ongoing and therefore, the first Application remained deferred.

4The applicant filed a second Application on July 3, 2015, which is the subject of this Interim Decision.

5The applicant works for the organizational respondent. In the first Application, she alleges a failure to accommodate her disability, harassment, and reprisal against the organizational respondent’s managers, including a personal respondent. She alleges that she has been subjected to intimidation and reprisal since having raised the issue of discrimination.

6In the first Application, the Tribunal found that there was a substantial overlap in the facts and issues between the grievances and the first Application. The Tribunal also stated that if the union decides to refer the grievances to arbitration, then an arbitrator would have the authority to address the alleged Code violations.

7When the first Application was filed, the applicant’s union had filed two grievances on her behalf that alleged violations of the Code. A remedy sought in one of the grievances is a declaration that the Code has been breached. At the time of the Interim Decision deferring the first Application, the grievances were being considered by the union’s executive to determine whether they would be referred to arbitration.

8Since that time, further grievances have been filed on the applicant’s behalf and the grievances have all been referred to arbitration.

9The applicant argues that the second Application contains allegations of reprisal which are not the subject of a grievance. The applicant states that she is being coerced into giving up her human rights Application in order to be returned to work. The respondent objects to these allegations because they arise from confidential settlement discussions.

10The respondent filed written submissions requesting dismissal of the portion of the second Application which arises from settlement discussions. The respondent is seeking deferral of the remainder of the second Application pending the conclusion of the applicant’s grievance proceeding.

11The applicant’s union, CUPE Local 79, (the “union”), which has indicated that it is not seeking intervenor status in the second Application, filed a submission providing information about the status of the grievance proceeding. The union has filed a number of grievances which relate to the following issues:

• Failure to accommodate the applicant with respect to her disabilities;
• Failure to maintain a harassment free workplace;
• Failure to maintain a safe and healthy work environment;
• Unjust suspension from October 22, 2014 and continuing (filed March 31, 2015); and
• Failure to accommodate with respect to disability (filed March 31, 2015).

12The grievances were referred to an arbitrator. On April 30, 2015 the union, the employer and the applicant attended before the arbitrator where it was agreed that the arbitrator would assist the parties in mediation. The grievances have not been settled and new dates have been set for arbitration on February 1, 2, March 21, 22, 2016.

Deferral

13The Tribunal may defer consideration of an application, on such terms as it may determine, and on its own initiative (Rule 14.1). 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 allegations of discrimination brought before it. Deferral avoids the risk of inconsistent findings being made by the Tribunal and an arbitrator if both proceedings were allowed to go ahead at the same time.

14I find that the applicant’s allegations of ongoing reprisal and failure to return her to a safe work environment in the second Application represent a continuation of the same allegations from the first Application. The arbitrator is empowered to address all of these issues, including the more recent allegation that the applicant believes she is being forced to give up her human rights Application in order to be returned to work. The arbitration is underway. The parties have concluded the mediation phase and new dates have been set in early February, 2015. Given that the discrimination and reprisal issues the applicant wishes to raise before this Tribunal are in substance, the same as the issues before the arbitrator, and it is clear that the parties are now moving into the last phase of the arbitration proceeding, I consider deferral of this second Application to be appropriate.

15Given that I have determined that this second Application will be deferred, it is not necessary for me to deal with the respondent’s request to dismiss at this time.

Order

16The Tribunal makes the following orders:

• The Application is deferred pending resolution of the grievance procedure; and
• The parties’ attention is directed to the Tribunal Rules 14.3 and 14.4, which outline the timeline and procedure by which a party may seek to bring the Application back on after the conclusion of the grievance proceeding.