May v. ABM International, 2015 HRTO 1580

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Asha May Applicant

-and-

ABM International Respondent

INTERIM DECISION

Adjudicator: Dawn J. Kershaw Date: November 23, 2015 Citation: 2015 HRTO 1580 Indexed as: May v. ABM International

WRITTEN SUBMISSIONS

Asha May, Applicant Donald May, Representative

ABM International, Respondent Lydia Funaro, Representative

Introduction

1This is an Application filed on August 4, 2015, under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination in employment because of family status. This Interim Decision addresses the issue of whether the Application should be deferred pending the completion of a related grievance proceeding.

2On July 31, 2015, the applicant’s union filed a grievance grieving her termination by the respondent, a copy of which the applicant attached to her Application.

3The Tribunal issued a Notice of Tribunal Intent to Defer (“the Notice”) on October 13, 2015, seeking submissions from the parties about whether it would be appropriate to defer the consideration of the Application pending the resolution of the grievance procedure. The Tribunal directed the parties to file submissions addressing this issue and stated that the respondent was not required, at this point, to file a Response. The applicant and the respondent filed submissions.

4The applicant opposes deferral. She submits the Application should not be deferred because, in her view the union has already told her what the outcome of the grievance hearing will be, even though it has not yet been scheduled. In addition, she alleges she continues to receive telephone calls from the respondent and her union discussing potential settlement offers with her, which she views as bullying.

5The respondent submits deferral is appropriate because the outstanding grievance deals with the same subject matter as the Application.

ANALYSIS AND DECISION

6The Tribunal may defer consideration of an application, on such terms as it may determine, and on its own initiative (Rule 14.1). The Tribunal has stated that 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 complaints of discrimination brought before it.

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. See Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42.

8The Supreme Court thus confirmed that human rights tribunals are not the only decision-makers that can decide human rights claims. 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. As 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.

9Some factors that have been identified as 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 types 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. See Baghdasserians v. 674469 Ontario, 2008 HRTO 404.

10In this case, there is substantial overlap between the facts covered by the Application and those referred to in the grievance. The grievance and the Application address the applicant’s termination. If the two matters were to proceed concurrently, there is a real risk that the two proceedings could have inconsistent findings of fact. It is therefore appropriate to defer the Application pending conclusion of the arbitration process.

11The matter is still live and the grievance process has not concluded. It is not yet apparent whether or not the applicant’s grievance will be referred to arbitration. If 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.

12The Tribunal directs the parties’ attention to Rules 14.3 and 14.4 of the Tribunal’s Rules of Procedure which outline the procedure by which the Application may be brought back on after the conclusion of the grievance process. In particular, the parties’ attention is drawn to Rule 14.4 which requires that a request to re-activate a deferred Application must be filed no later than 60 days after the conclusion of the other proceeding.

13I am not seized with this matter.