Diaper v. Public Service Alliance of Canada, 2015 HRTO 1561

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Lorraine Diaper

Applicant

-and-

Public Service Alliance of Canada

Respondent

-and-

Canadian Union of Labour Employees

Intervenor

INTERIM DECISION

Adjudicator: Ken Bhattacharjee

Date: November 18, 2015

Citation: 2015 HRTO 1561

Indexed as: Diaper v. Public Service Alliance of Canada

WRITTEN SUBMISSIONS

Lorraine Diaper, Applicant

Jan Liberty, Representative

Public Service Alliance of Canada, Respondent

Charles Hofley and Siobhan O’Brien, Counsel

1The purpose of this Interim Decision is to decide whether the Tribunal should defer consideration of the Application pending the conclusion of a grievance proceeding.

2The applicant is employed by the Public Service Alliance of Canada, and is a member of the Canadian Union of Labour Employees (the “union”).

3In November 2014, April 2015 and May 2015, the union filed grievances on the applicant’s behalf, which alleged, among other things, that her employer had subjected her to harassment and discrimination contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

4On April 13, 2015, the applicant filed an Application with this Tribunal under s. 34 of the Code, which alleged that the respondent discriminated against her with respect to employment. She acknowledged that the facts of her Application were part of a grievance proceeding, which was still ongoing, but opposed the deferral of her Application pending the conclusion of the grievance proceeding.

5On August 20, 2015, the respondent filed a Response, which denied the allegation of discrimination, and requested that the Tribunal defer consideration of the Application pending the conclusion of the grievance proceeding.

6On October 7, 2015, the applicant filed a Reply, which maintained her opposition to the deferral of her Application pending the conclusion of the grievance proceeding.

7Section 45 of the Code provides that the Tribunal may defer an Application in accordance with the Tribunal’s Rules. Rule 14.1 of the Tribunal’s Rules of Procedure provides that the 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. The Tribunal will 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.

8In Baghdasserians v. 674469 Ontario, 2008 HRTO 404, the Tribunal made the following general 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.

9The Supreme Court of Canada has confirmed that human rights tribunals are not the only decision-makers that can decide human rights claims. See Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42. Where the parties are already engaged in a concurrent legal proceeding in which they are raising the same human rights issues before a decision-making body with the authority to make determinations about those issues, the orderly administration of justice favours deferral to the other proceeding. In such a scenario, the Tribunal’s normal approach is to defer to the other proceeding. See Tekes v. Markham (Town), 2009 HRTO 1665 at para. 7.

10In her submissions, the applicant stated that her Application should not be deferred because the grievance proceeding has not progressed beyond the first level, there is no guarantee that the union will refer her grievances to arbitration, she is currently on leave without pay, and the scope of her Application is broader than the scope of the grievances.

11I disagree. In my view, deferral is the most fair, just and expeditious way of proceeding with the Application. There is no dispute between the parties that the grievance proceeding started before the human rights Application was filed, the subject matter of the grievances and the Application are similar, and if the grievances are referred to arbitration, the arbitrator has the authority to interpret and apply the Code. In essence, the applicant wants the grievance proceeding and the proceeding before this Tribunal to be running concurrently, which raises the possibility of inconsistent decisions on facts or law. These factors all weigh in favour of deferral.

12In my view, the applicant has not identified a compelling circumstance which would cause the Tribunal to depart from its normal approach. Accordingly, the Tribunal orders the deferral of the Application pending the conclusion of the grievance proceeding.

13Pursuant to Rules 14.3 and 14.4 of the Tribunal’s Rules, where a party wishes to proceed with an Application which has been deferred, the party must file a Request for an Order During Proceedings (Form 10) within 60 days after the conclusion of the other proceeding. The Tribunal’s Rules and Forms can be found on its website.

14I am not seized of this matter.