Butler v. Sheridan Institute of Technology and Advanced Learning, 2016 HRTO 820

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Leslie Butler

Applicant

-and-

Sheridan Institute of Technology and Advanced Learning, Ronni Rosenberg, Maria Terreberry-Portfilio, and Jeff Zabudsky

Respondents

-and-

Ontario Public Service Employees Union

Intervenor

INTERIM DECISION

Adjudicator: Josée Bouchard Date: June 20, 2016 Citation: 2016 HRTO 820 Indexed as: Butler v. Sheridan Institute of Technology and Advanced Learning

WRITTEN SUBMISSIONS

Leslie Butler, Applicant Self-represented

Sheridan Institute of Technology and Advanced Learning, Ronni Rosenberg, Maria Terreberry-Portfilio, and Jeff Zabudsky, Respondents Patricia G. Murray, Counsel

Ontario Public Service Employees Union, Intervenor Caroline V. (Nini) Jones, 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 and whether to remove the Ontario Public Service Employees Union ("Union") as an intervener.

Request to defer

2The applicant indicates in the Application that the facts are not part of another proceeding that is still in progress. On April 11, 2016, the respondents filed their Response, including a request to defer, pursuant to section 45 of the Code and Rule 14 of the Tribunal's Rules of Procedure. The respondents submit that the applicant has filed numerous grievances, filed with the Response, in relation to the events that are the subject of this Application. More particularly, the respondents maintain that the grievances essentially allege that the corporate respondent's actions towards the applicant are harassment and discrimination and constitute a violation of the Collective Agreement. The grievances refer, among other sections, to the sections in the Collective Agreement related to "no discrimination, bullying, or psychological harassment" in accordance with the provisions of the Code.

3The respondents maintain that the hearing for all of the applicant's grievances were commenced before a Board of Arbitration on June 15, 2015 and is ongoing. They submit that arbitrators are familiar with both labour relations law and the interpretation and application of discrimination and harassment provisions in collective agreements. They routinely hear and decide complex cases of law and facts dealing with allegations of discriminatory conduct.

4The applicant opposes the request to defer, arguing that the issues and subject-matter of the grievances are significantly different than the issues raised in this Application. She argues that there is no overlap and therefore no potential for duplication of evidence and inconsistent findings of fact or remedies. The applicant also submits that the personal respondents are not parties to the grievance arbitration and as such there is no remedy that can be found or imposed upon those respondents should there be a finding of discrimination in the arbitration proceeding.

Analysis and Decision on Request to Defer

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 Tribunal's 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 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.

7The 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.

8In 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 matter is still live and the applicant's grievances are before a Board of Arbitration. However, if 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 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 which has been deferred, the party must file a Request for an Order During Proceedings (Form 10) within 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/.

intervenor status

11On March 30, 2016, the Union filed a Notice of Intervention by Bargaining Agent ("request for intervention"), in accordance with Rules 11.14 of the Tribunal's Rules of Procedure, submitting that it has an interest in ensuring compliance with the Code and its collective agreements. The Union maintains that it anticipates participating in any mediation and any hearing, as necessary and appropriate and in accordance with the direction of the Tribunal.

12On April 8, 2016, the applicant filed a Request for Order During Proceedings opposing the request for intervention. She alleges that the Application is about the corporate respondent's practices in 2015 and not about a violation of the Collective Agreement. She argues that she has not filed labour grievances in connection with the matter and that no other Union member besides herself stands to be directly affected by the ruling on the Application. She maintains that while the Union may have a general interest in the broad topic of human rights at the colleges, the interest has not usually caused the Union to seek intervenor status at the Tribunal when individuals belonging to the Union bring complaints to the Tribunal. In addition, she argues that the Union is in no position to anticipate playing a helpful role as the applicant does not trust the Union's advice and counsel.

13The Union argues that it is the exclusive bargaining agent for approximately 9,000 employees of community colleges in Ontario. It is party to the Collective Agreement that binds, among others, the corporate respondent. In addition, the applicant is a member of the Union. It argues that it has an interest in ensuring that the corporate respondent complies with the Code and meets its obligations under the Collective Agreement and therefore, it has an interest in the outcome of this proceeding.

Analysis and Decision on Intervenor Status

14The Tribunal has long recognized that bargaining agents virtually always have an interest in an application brought by a member regarding their employment. See Marc-Ali v. Graham, 2010 HRTO 1321 at para. 8, Lopes v. Group G4S Secure Solutions (Canada) Ltd., 2014 HRTO 768 at para. 9, and Boyce v. Toronto Community Housing Corporation, 2009 HRTO 131 at para. 13.

15Rule 11.14 of the Tribunal's Rules of Procedure reflects that principle:

The bargaining agent for an applicant who has filed an Application about his or her employment may intervene in the Application by filing a Notice of Intervention by bargaining Agent in Form 28.

16In Arar v. Cooper Standard Automotive Canada Limited, 2015 HRTO 23 ("Arar"), the applicant alleged that the intervener union "did not assist him when he was employed by the organizational respondent", and that he was not even employed long enough to become a member of the union. The Tribunal confirmed the longstanding jurisprudence recognizing the interests of bargaining agents in applications involving their members noting at paragraph 5:

While I appreciate that, from the applicant's perspective, the intervenor seems to have little involvement in the dispute with the respondent, the applicant has requested reinstatement which may affect the operation of the collective agreement in questions.

17I agree with the Union's position that the applicant's general allegations of discrimination in the workplace engage the Union's role as exclusive bargaining agent, and its Collective Agreement with the respondent.

order

18The Tribunal orders as follows:

a. The respondents' request to defer is granted;

b. The Union is granted leave to intervene. The scope of the Union's intervention will be determined by the adjudicator hearing the matter.

19I am not seized of this matter.

Dated at Toronto, this 20th day of June, 2016.

"Signed By"

Josée Bouchard

Vice-chair