Human Rights Tribunal of Ontario
BETWEEN:
Sheri Zhang Applicant
-and-
University of Ottawa Respondent
INTERIM DECISION
Adjudicator: Eli Fellman Date: June 15, 2015 Citation: 2015 HRTO 793 Indexed as: Zhang v. University of Ottawa
WRITTEN SUBMISSIONS
Sheri Zhang, Applicant Self-represented
University of Ottawa, Respondent David Bolger, Counsel
1The applicant filed this Application under section 34 of Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) alleging discrimination with respect to employment because of race, colour, ancestry, place of origin, ethnic origin, sex, sexual solicitation or advancement, gender expression, age, association with a person identified by a Code ground and reprisal or threat of reprisal.
2On April 29, 2015, the Tribunal issued a Notice of Intent to Defer pending the resolution of another legal proceeding pursuant to Tribunal Rule of Procedure 14.
3Two previous Applications filed by the applicant against the respondent were resolved with Minutes of Settlement signed on March 31, 2014. This Application alleges that after the Minutes of Settlement were signed, the Dean of the Faculty of Arts took steps to terminate her employment and assign her courses to a sessional lecturer as a reprisal for filing the previous Applications.
4The other legal proceeding in question is an Employment Standards Act, 2000 (“ESA”) claim made by the applicant against the respondent. In her claim the applicant alleges that the Dean of the Faculty of Arts took steps to wrongfully terminate her employment as a reprisal, and seeks an order reinstating her position as a full professor. The ESA claim includes a number of other allegations and issues, including whether the applicant should be treated as belonging to a bargaining agent which represents full-time faculty employed by the respondent and/or a different bargaining agent which represents part-time faculty. This is also an issue with respect to the Application as the Tribunal must consider the bargaining agent’s request that it be removed as an affected organization to the Tribunal proceedings.
5The initial ESA decision was issued on December 21, 2014. The applicant has appealed that decision to the Ontario Labour Relations Board (“OLRB”). A mediation session was scheduled for May 28, 2015.
6Both parties provided submissions in response to the Notice of Intent to Defer. In her submissions the applicant asserts that her ESA claim “. . . does not include issues on Human Rights harassment and reprisals”. She also notes that the merits of her claim were not considered because it was determined that she belongs to a bargaining agent and should have pursued her claims through the collective agreement grievance process. The respondent believes that Application should be deferred because none of the applicant’s Tribunal or ESA applications have any merit and her claims were dealt with in the Minutes of Settlement signed on March 31, 2014.
DECISION
7Pursuant to Rule 14.1 of the Tribunal’s Rules of Procedure, 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. 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.
8The 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. The Tribunal will generally defer an application where the parties are engaged in other legal proceedings raising similar facts and issues, particularly where the other decision-maker has the authority to make determinations with respect to facts and order remedies that parallel the application. The Tribunal also considers 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 Aganeh Estate v. Mental Health Care Penetanguishene, 2011 HRTO 2280; Christianson v. College of Physicians and Surgeons, 2009 HRTO 438 at para. 10; and Groves v. Ontario (Community Safety and Correctional Services), 2010 HRTO 1779.
9I find that there is considerable overlap between ESA/OLRB proceeding and this Application. The factual foundation for both matters is the same – namely that the Applicant’s employment with the respondent was terminated as a form of reprisal because the applicant had made previous allegations concerning the conduct of the Dean of the Faculty of Arts. There is also overlap in the remedies sought by the applicant in both matters – the reinstatement of her full professor employment contract.
10Since the issues in the Application and the proceedings before the OLRB overlap significantly, proceeding with the Application at the Tribunal could very well lead to inconsistent decisions on the facts and/or legal issues raised in the Application and the proceedings before the OLRB. The primary purpose of deferring an application is to avoid such potential inconsistency.
11In addition, it is likely that the OLRB will make a determination respecting whether the applicant belongs to a bargaining agent as this is a matter that falls squarely within its expertise. The Tribunal would benefit from such a determination because, as explained above, the Tribunal