Mahesparan v. York University, 2016 HRTO 257

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kothanayake Mahesparan

Applicant

-and-

York University, Debbie Kee, Carla Ferlisi, Frank Volpi and Thambi Alaguthura

Respondents

-and-

Canadian Union of Public Employees Local 1356

Intervenor

INTERIM DECISION

Adjudicator: Dawn J. Kershaw

Date: February 25, 2016

Citation: 2016 HRTO 257

Indexed as: Mahesparan v. York University

WRITTEN SUBMISSIONS

Kothanayake Mahesparan, Applicant

Self-Represented

York University, Debbie Kee, Carla Ferlisi, Frank Volpi and Thambi Alaguthura, Respondents

Joanna S. Rainbow, Counsel

Introduction

1This is an Application filed on November 17, 2015 under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), alleging discrimination in employment because of disability and age. This Interim Decision deals with the issue of whether the Application should be deferred pending the completion of related grievance proceedings.

2The applicant indicates in the Application that the facts of the Application are part of other proceedings that are still in progress, namely union grievances. The applicant filed copies of grievances dated March 16, June 8, September 29 and November 23, 2015.

3The Tribunal issued a Notice of Tribunal Intent to Defer ("NOID") on January 13, 2016, seeking submissions from the parties about whether it would be appropriate to defer the consideration of the Application pending the resolution of the grievance procedures. The Tribunal directed the parties to file submissions addressing this issue and stated that the respondents were not required, at this point, to file a Response. The applicant and respondents filed submissions.

4The applicant's submission states only that the grievance procedure remains ongoing, and she asks that the Application not be deferred.

5The respondents submit deferral is appropriate because the applicant has filed the four grievances listed in paragraph 2, above, plus another since then dated January 6, 2016, that is set for arbitration in January, 2016, and there is clear overlap between the allegations in the grievance and in the Application. The grievances allege the same Code contraventions as the Application.

6The Step One and Complaint Stage meetings have been held, and the matter was to proceed to mediation on February 19, 2016 through the respondent, York University's, Centre for Human Rights. This mediation was put on hold because the respondents received the Application and the NOID. The grievances will proceed to an internal mediator, then if unresolved, to a Step Two meeting, and then to arbitration, or mediation with an outside mediator.

7The respondents submit the Application should be deferred because it is more expeditious for the grievances to continue as they are already underway, and there is the potential for them to be heard by an arbitrator with the authority to make decisions with respect to the Code.

ANALYSIS

8The 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.

9The 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.

10The 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.

11As 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.

12In 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 grievances. The matters are still live as the grievance process has not concluded. In the Tribunal's process, the respondents have not yet filed a Response.

13It is appropriate to defer the Application pending conclusion of the arbitration process.

14If the applicant believes, on conclusion of that process, that her human rights issues have not been adequately addressed, she may ask to have his Application brought back on before the Tribunal.

15The Tribunal directs the parties' attention to Rules 14.3 and 14.4 of the Tribunal's Rules of Procedure which outline the procedure by which the Application may be brought back on after the conclusion of the grievance process. In particular, the parties' attention is drawn to Rule 14.4 which requires that a request to re-activate a deferred Application must be filed no later than 60 days after the conclusion of the other proceeding.

18I am not seized of this matter.

Dated at Toronto, this 25th day of February, 2016.

"Signed by"

Dawn J. Kershaw

Vice-chair

CORRECTION

The Interim Decision originally issued on February 25, 2016 incorrectly named the respondent's counsel as "Kelly M. McDermott". This error has been corrected.