Josephs v. Eaton Care Centre, 2016 HRTO 498

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Carol Josephs Applicant

-and-

Eaton Care Centre, Evelyn McDonald and Karen Telfer O’Conner Respondents

INTERIM DECISION

Adjudicator: Keith Brennenstuhl Date: April 18, 2016 Citation: 2016 HRTO 498 Indexed as: Josephs v. Eaton Care Centre

WRITTEN SUBMISSIONS

Carol Josephs, Applicant Ayoob Khan, Representative

Eatonville Care Centre, Evelyn McDonald and Karen Telfer O’Connor, Respondents Mary Kokosis, Counsel

1This Application alleges discrimination with respect to employment because of race, colour, place of origin, ethnic origin, age and reprisal or threat of reprisal contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). This Interim Decision deals with the respondents’ request that the Tribunal defer consideration of this Application pending the completion of a related grievance proceeding.

2The applicant indicates in the Application that the facts of the Application are part of a union grievance proceeding that is still in progress.

3The 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 (Rule 14.1). 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, in light of the particular circumstances of each case, whether deferral is the most fair, just and expeditious way of proceeding with the application.

4Deferral 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. Some of the factors that may be relevant in deciding whether to defer consideration of an application are the subject-matter of the other proceeding, the nature of the other proceeding, the type of remedies available in the other proceeding, and 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: Klein v. Toronto Zionist Council, 2008 HRTO 189.

5The applicant indicates that she consents to deferral of the application on several conditions including that she “be given the opportunity to reopen her complaint in the event that the union fails to fully represent her or the respondents fail to fully address the entire complaint of allegations of human rights violation in the arbitration”.

6Although the Tribunal may defer an application on such terms as it may determine, it does not generally defer on a conditional basis, but rather based on whether deferral is appropriate in the circumstances.

7The facts and issues raised by this Application are part of a grievance and arbitration process that is in process and the applicant has not identified any circumstances that would cause the Tribunal to depart from its normal approach of deferring to the grievance and arbitration procedure. I find that, in these circumstances, deferring the Application is appropriate.

8The Application will therefore be deferred pending 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.

10I am not seized.