HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Wendy Scoular
Applicant
-and-
The Corporation of the City of Kitchener
Respondent
INTERIM DECISION
Adjudicator: Josée Bouchard
Indexed as: Scoular v. Kitchener (City)
WRITTEN SUBMISSIONS
Wendy Scoular, Applicant
Self-represented
The Corporation of the City of Kitchener, Respondent
Matthew J. Mihailovich, Counsel
Canadian Union of Public Employees (Local 791), Affected Party
Johanna Ellis, Counsel
Introduction
1This is an Application filed under section 34 of Part IV of 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 (“request to defer”).
Analysis and Decision
2On October 21, 2016, the Tribunal issued a Notice of Intent to Defer pending the resolution of another legal proceeding (“NOID”) dealing with the subject-matter of the Application pursuant to Rule 14 of the Tribunal`s Rules of Procedure, namely two grievances filed by the Canadian Union of Public Employees, Local 791 (“the Union”), on behalf of the applicant.
3On November 15, 2016, the applicant filed a response to the NOID objecting to the deferral. The applicant submits that months have passed since the grievances were filed and the respondent has not responded. The applicant also maintains that the grievances only address the issue of her lost employment because of redundancy. She contends that other matters are before the Tribunal, including harassment, issues related to her mental health and the duty to accommodate.
4On November 21, 2016, the respondent filed submissions in support of deferral as follows:
a. the subject matter of the other proceeding is identical and/or substantially identical with respect to both the factual background and the issues in dispute;
b. the nature of the other proceeding is judicial or quasi-judicial and labour arbitrators are familiar with both labor relations law and the interpretation and application of discrimination and harassment provisions of the Code;
c. The remedies available in the other proceeding are similar and overlapping with the types of remedies available before the Tribunal and being sought in the Application; and
d. It would be fair overall, given that the grievance process is already well underway and that the grievances can be addressed expediently under the terms of the collective agreement, to defer the Application.
5The Tribunal may defer consideration of an application, on such terms as it may determine, and on its own initiative (Rule 14.1 of the Rules of Procedure). 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.
6The 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 Supreme Court of Canada decision affirming 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.
7It 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 proceeding. This raises the possibility of inconsistent findings of fact if the Application is not deferred and runs concurrently with the grievance process. I am satisfied that the applicant’s concerns that the grievance process will fail to address the human rights matters do not justify a departure from the Tribunal’s regular approach. The matter is still live and the grievance process has not concluded. The Union and the respondent are proceeding through the steps of the grievance process set out in the collective agreement, including meeting to discuss and review the merits of the grievances.
8If the applicant believes, on conclusion of the process, that her human rights issues have not been adequately addressed, she may ask to have her Application brought back on before the Tribunal.
9The Application will therefore be deferred pending the completion of the grievance process.
10The Tribunal directs the parties’ attention to Rules 14.3 and 14.4 of the Rules of Procedure which outline the procedure by which the Application may be brought back on after the conclusion of the grievance process. Where a party wishes to proceed with an Application that has been deferred, the party must file a Request for an Order During Proceedings (Form 10) no later than 60 days after the conclusion of the other proceeding. The Tribunal’s Rules of Procedure and Forms can be found on its website at www.sjto.gov.on.ca/hrto/.
Order
11In these circumstances, the Application is deferred pending the conclusion of the grievance proceeding.
12I am not seized of this matter.
Dated at Toronto, this 29th day of November, 2016.
“Signed By”
Josée Bouchard
Vice-chair