HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Yaisa McCarthy
Applicant
-and-
City of Toronto
Respondent
INTERIM DECISION
Adjudicator: Alison Renton
Indexed as: McCarthy v. Toronto (City)
1This Application alleges discrimination with respect to employment because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).
2On August 27, 2015, the Tribunal issued a Notice of Intent to Defer (“NOID”) because the applicant has filed a grievance. The Tribunal sought the parties’ submissions about whether or not it was appropriate to defer the Application pending the conclusion of the other proceeding. The NOID was also sent to Canadian Employee of Public Employees, Local 79 (“the union”).
3The union filed submissions stating that it takes no position on whether or not the Application should be deferred. It submitted that it has sent two grievances about the applicant, one from March 2015 and the other from May 2015, to the respondent and provided copies of the grievances. It has not filed a Request to Intervene.
4The applicant opposes deferral. She submits that her grievances remain outstanding, that she did not think that one of the grievances was actually filed, and that since filing the grievance(s), further incidents of discrimination have occurred in the workplace.
5The respondent submits that deferral is appropriate, referring to the Tribunal’s practice of deferring whether there is an outstanding grievance.
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 a collective agreement. See Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42.
8In this case, there are two grievances which have been filed by the union in relation to the same issue as that raised in the Application: accommodating the applicant’s disability in the workplace. The grievances also seek remedies which were similar to those in the Application, including loss of wages. While the grievances have not yet been referred to Stage 2 of the grievance procedure, it would not be constructive to have two proceedings consider concurrently the same facts, including an alleged failure by the respondent to accommodate the applicant in the workplace, as this may lead to contrary findings and decisions. Therefore, I find that it is most fair, just and expeditious to defer this Application.
9Accordingly, the Application is deferred pending conclusion of the grievance arbitration process. 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 deferring pending the conclusion of another proceeding. In particular, the parties ought to be aware of Rule 14.4 which requires that a request for re-activation be made to the Tribunal within 60 days of the conclusion of the other proceeding.
10I am not seized with this matter.
Dated at Toronto, this 29^th^ day of October, 2015.
“Signed by”
Alison Renton
Vice-chair
CORRECTION
The Interim Decision issued on October 29, 2015 incorrectly stated the file number as “2014-21542-I”. This error has been corrected.
Dated at Toronto, this 6^th^ day of November, 2015.
“Signed by”
Alison Renton
Vice-chair