HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Ulanie Fabre
Applicant
-and-
Grand Toronto Venture L.P., A Delaware limited partnership doing business as Park Hyatt Toronto
Respondent
INTERIM DECISION
Adjudicator: Naomi Overend
Date: March 13, 2015
Citation: 2015 HRTO 319
Indexed as: Fabre v. Grand Toronto Venture L.P.
1This Interim Decision deals with the issue of whether the Application should be deferred pending the completion of a related grievance proceeding.
2The respondent requested that the Tribunal defer this matter to a grievance proceeding (among other proceedings) in its Response. The Tribunal advised the applicant to provide her submissions on deferral in its December 12, 2014 letter enclosing the Response. The applicant did not respond to this letter, but did send in submissions to a follow-up Case Assessment Direction. The applicant, however, did not specifically respond to the question of whether the Application should be deferred pending the conclusion of the grievance proceeding, although the tenure of her submissions suggests that she is opposed to the deferral or dismissal of her Application.
Decision and analysis
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. See Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42.
5The applicant is represented by UNITE HERE, Local 75 (the “union”). On June 10, 2014, her union filed a grievance alleging the applicant was “assaulted, harassed and bullied at work” on June 1, 2014. The Application concerns the same events of June 1, 2014.
6The respondent advises, and the applicant does not dispute, that the parties agreed to proceed directly to arbitration, and that arbitration dates were set for November 18 and 20, 2014. The arbitration did not proceed on those dates because counsel for the union advised that the applicant was unable to proceed for medical reasons. The parties agreed to adjourn the arbitration on the basis that it would be immediately rescheduled when the applicant is medically able to attend.
7Clearly the central issues in this Application will be addressed at this grievance and it would be unfair to the respondent to make it participate in two concurrent processes which might lead to conflicting factual conclusions. Given that the grievance process is now well underway,the most just, fair and expeditious route would be to defer this Application pending the outcome of the grievance process
order
8The Application will therefore be deferred pending the completion of the grievance process.
9The 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. Should the matter be reactivated, the parties will be asked to address whether this matter should be dismissed as failing to disclose discriminatory treatment based on a ground or reprisal under the Code.
Dated at Toronto, this 13th day of March, 2015.
”Signed by”_________________________
Naomi Overend
Vice-chair