Given v. Peterborough (City), 2015 HRTO 171

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Melissa Given Applicant

-and-

The City of Peterborough Respondent

-and-

Canadian Union of Public Employees, Local 126 Intervenor

INTERIM DECISION

Adjudicator: Douglas Sanderson Date: February 5, 2015 Citation: 2015 HRTO 171 Indexed as: Given v. Peterborough (City)

WRITTEN SUBMISSIONS

Melissa Given, Applicant Self-represented

The City of Peterborough, Respondent Vincent Panetta, Counsel

Canadian Union of Public Employees, Local 126, Intervenor No one appearing

1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of disability. This Interim Decision deals with the issue of whether the Application should be deferred pending the completion of a related grievance proceeding.

2The respondent indicates in the Response that the facts of the Application are part of a union grievance proceeding that is scheduled to proceed to arbitration on March 10, 2015 and requests deferral of the Application pending the resolution of the grievance arbitration proceeding. The respondent provided a copy of the grievance filed on his behalf by the intervenor, which confirms that subject matter of the grievance is the same as this Application, i.e., alleged discrimination in a job competition. In her Reply, the applicant stated that she understood if the matter must be deferred, but asked the Tribunal not to dismiss it.

Analysis and Decision

3The 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.

4The 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).

5The 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.

6In this case, it is apparent that there is substantial overlap between the facts and human rights issues covered by the Application and those referred to in the grievance. The grievance has also reached the arbitration stage and is clearly further advanced than this Application. In my view, there is no reason to deviate from the Tribunal’s normal practice of deferring to the grievance/arbitration process, particularly in light of the fact that the parties both requested deferral. If the applicant believes, on conclusion of the grievance/arbitration process, that her human rights issues have not been adequately addressed, she may ask to have her Application brought back on before the Tribunal.

7The Application will therefore be deferred pending the completion of the grievance process.

8The Tribunal directs the parties’ attention to Rules 14.3 and 14.4 which outline the procedure by which the Application may be brought back on after the conclusion of the grievance process.

9I am not seized.