Chapelle v. Child and Family Centre, 2017 HRTO 1517

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Laura–Kim Chapelle

Applicant

-and-

Child and Family Centre

Respondent

INTERIM DECISION

Adjudicator: Yasmeena Mohamed

Date: November 20, 2017

Citation: 2017 HRTO 1517

Indexed as: Chapelle v. Child and Family Centre

WRITTEN SUBMISSIONS

Laura-Kim Chapelle , Applicant

Self-represented

Child and Family Centre, Respondent

George Vuicic, Counsel

1This Interim Decision addresses whether the Tribunal should defer consideration of the Application pending the conclusion of the grievance arbitration proceeding in this case.

2The applicant filed an Application alleging discrimination because of creed, reprisal and threat of reprisal contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

3Specifically, the applicant alleges that she was subject to discrimination, harassment and violence in the workplace.

4In addition to filing this Application, the applicant filed a grievance with her union. The applicant’s union has referred the grievance to arbitration.

5By Notice of Intent to Defer (“NOID”) dated August 15, 2017, the Tribunal proposed to defer consideration of the Application pending the conclusion of the grievance arbitration proceeding.

6The applicant has opposed the deferral of the Application. The applicant submits that the Application refers specifically to the violation of her human rights and the grievance specifically relates to her unjust termination, reinstatement of her employment, seniority, benefits and wages. The applicant acknowledges that the facts pleaded in the Application will also be used in the grievance arbitration process to demonstrate the respondent’s unjustified termination.

7The respondent has agreed to the deferral of the Application. The respondent submits that the allegations in the applicant’s Application are substantially similar to allegations in her grievance and they both rely on the same factual matrix. The respondent submits that the remedies sought by applicant are the same in both proceedings. Accordingly, the respondent submits that the same issues will be raised and addressed in both proceedings. The respondent submits that this significant overlap of allegations and remedies sought by the applicant in both proceedings risks the possibility of inconsistent decisions in fact and law.

DEFERRAL

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 generally deferred applications where there is an ongoing grievance under a collective agreement based on the same facts and human rights issues. The reason for this is that grievance arbitrators have not only the power, but also the responsibility to enforce human rights and other employment-related statutes as if they were part of a collective agreement. See Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42.

9In this case, I find it appropriate for the Tribunal to defer consideration of the Application pending the conclusion of the grievance/arbitration proceedings. The applicant has made similar allegations and sought similar remedies in both the Application and the grievance. The applicant acknowledges that the same factual evidence will be relied on to substantiate her allegations in both proceedings. In my view, the facts and issues to be determined in this Application will be identical to the facts and issues to be determined in the grievance arbitration process. This poses a substantial risk of inconsistent findings of fact and/or law if the Application and the grievance were to proceed together.

10If the applicant believes that the grievance arbitration proceeding did not appropriately deal with the substance of her Application, she may seek to re-activate her deferred Application. However, the applicant should take note that, under s. 45.1 of the Code, the Tribunal has the power to dismiss applications if the substance of an application has been appropriately dealt with in another proceeding.

11Rules 14.3 and 14.4 of the Tribunal’s Rules of Procedure address how an application may be brought back before the Tribunal following conclusion of another proceeding. It should be noted that, a party wishing to proceed with an application must file a Request for 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

12For the above reasons, the Application is deferred pending the conclusion of the grievance arbitration proceedings.