Gulma v. Toronto Transit Commission, 2015 HRTO 268

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Yahya Gulma Applicant

-and-

Toronto Transit Commission Respondent

-and-

Canadian Union of Public Employees and its Local 2 Affected Party

INTERIM DECISION

Adjudicator: Dawn J. Kershaw
Date: March 6, 2015
Citation: 2015 HRTO 268
Indexed as: Gulma v. Toronto Transit Commission

WRITTEN SUBMISSIONS

Yahya Gulma, Applicant Self-represented

Toronto Transit Commission, Respondent Patricia Matusiak, Counsel

Introduction

1This Application filed on December 2, 2014 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”). This Interim Decision deals with the issue of whether the Application should be deferred pending the completion of a related grievance proceeding.

2On January 12, 2015, the Tribunal sent the parties a Notice of Intent to Defer (the “Notice”), which indicated that it may be appropriate to defer the Application pending the resolution of the grievance. The Tribunal directed the parties to file by no later than 30 days after January 12, 2015 submissions regarding whether the Tribunal should defer the Application pending the completion of the grievance proceeding.

3On February 3, 2015, the applicant filed a letter in which he objected to deferral because the matter has not progressed and his apprenticeship has been put on hold.

4The respondent filed its submissions on February 11, 2015. The respondent submitted that the applicant has an outstanding grievance filed on March 26, 2014 after a Step 1 meeting did not resolve the applicant’s grievance. Since then the parties have proceeded through Steps 2 and 3 of the grievance process on October 29 and November 14, 2014, respectively. On February 10, 2015 the applicant and intervenor requested agreement on an arbitrator and asked for arbitration dates from the respondent.

5The respondent further submitted that the grievance deals with the same facts and human rights issues as this Application to the Tribunal. The applicant’s grievance alleges the respondent wrongfully excluded the applicant from being an electrician apprentice contrary to the Code and that the respondent failed to accommodate the applicant to the point of undue hardship. In addition, the respondent submitted that the applicant has claimed lost wages and Code-related damages in the grievance.

6The respondent submitted that allowing the Application to proceed prior to the conclusion of the grievance process would result in unnecessary duplication of proceedings and the possibility of inconsistent results and remedies.

7The respondent relies on the Baker v. Liquor Control Board of Ontario, 2012 HRTO 1165 (“Baker”) in which the applicant’s grievance and HRTO application raised identical issues. In that case, the Tribunal refused to deviate from the Tribunal’s general practice of deferring an Application pending the outcome of a grievance procedure on the basis of the applicant’s complaints of delay,

decision and analysis

8The Application is deferred pending resolution of the outstanding grievance.

9The Tribunal may defer consideration of an application on such terms as it may determine, on its own initiative or at the request of a party (Rule 14.1). Deferral of an application seeks to ensure that proceedings dealing with the same facts or issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law. The Tribunal will generally defer an application where there is an ongoing grievance under a collective agreement based on the same facts and issues. However, the Tribunal must also consider whether deferral is the most fair, just and expeditious way of proceeding with the application.

10The 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).

11The Supreme Court thus confirmed that human rights tribunals are not the only decision-makers that can decide human rights claims. Where the parties are 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.

12As 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.

13In 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 matters are still live and the grievance process has not concluded. I also adopt the reasoning at paragraph 7 of Baker. If the applicant believes, on conclusion of the process, that his human rights issues have not been adequately addressed, he may ask to have his Application brought back on before the Tribunal.

14This will be the most expeditious way of proceeding. The fact that the grievance has not quite been referred to arbitration is not determinative of the issue in my view, particularly since the applicant has requested arbitration dates from the respondent.

order

15The Application is deferred pending the completion of the grievance and arbitration process.

16The parties’ attention is drawn to Rules 14.3 and 14.4 of the Tribunal’s Rules of Procedure, which address how the Application may be brought back on before the Tribunal, following conclusion of the grievance and arbitration process.