HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Paul Lipke
Applicant
-and-
Her Majesty the Queen in Right of Ontario as represented by the Minister of Community Safety and Correctional Services and Lou-Ann Lucier
Respondents
INTERIM DECISION
Adjudicator: Eric Whist
Date: November 24, 2008
Citation: 2008 HRTO 285
Indexed as: Lipke v. Ontario (Community Safety and Correctional Services)
Human Rights Tribunal of Ontario 655 Bay Street, 14th Floor Toronto, ON M7A 2A3 Phone (416) 314-8419 / Fax (416) 314-8743 / Toll free 1-866-598-0322 TTY (416) 314-2379 / (toll free) 1-800-424-1168 E-mail hrto.registrar-transition@ontario.ca Website www.hrto.ca
[1] The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”) on August 28, 2008. The applicant is a manager in a provincial detention centre who alleges that the respondents discriminated against him in the awarding of a merit increase on the basis of his disability. The Tribunal has amended the name of the corporate respondent to be consistent with the naming requirements for applications brought against provincial government respondents. This interim decision deals with the respondents’ request to defer the Application pending the outcome of a related proceeding.
[2] The Application states that the applicant has commenced a related claim under the Public Service of Ontario Act, 2006, S.O. 2006, c. 35 (PSOA). The Application does not indicate whether the applicant wants to defer his Application until this claim has been concluded.
[3] The Response confirms that the applicant has made a complaint under the PSOA based on the same facts as outlined in the Application. The Response includes a letter from the applicant to the Deputy Minister of the Ministry of Community Safety and Correctional Services dated August 26, 2008 which reads, in part;
Please consider this letter as my notice of proposal to file a complaint under Ontario Regulation 378/07.
My complaint alleges breaches in the Ontario Human Rights Code, the Ministry’s WDHP [Workplace Discrimination and Harassment Policy] and the Public Service of Ontario Act. I complain about discrimination in contract based on a physical disability.
I am being discriminated against in the application of my merit increase due to my physical limitations.
[4] The Response states that the complaint is currently at “Stage One’ and is being considered by the Deputy Minister’s designate. If the applicant’s request for redress is not granted the applicant may then take his complaint to the Public Service Grievance Board (PSGB). The respondents state that the PSGB has the authority and capacity to assess the merits of the applicant’s human rights complaint about his merit pay in a manner no different than the Tribunal would. The respondents request that the Application be deferred pending the outcome of the applicant’s complaint to the PSGB.
[5] The Tribunal wrote to the applicant on October 20, 2008 inviting him to submit a reply to matters raised in the Response. The Tribunal has not received a Reply (Form 3) from the applicant to clarify his position on the issue of deferral or to respond to the respondent’s request for a deferral.
DECISION
[6] Deferral of an application ensures that proceedings dealing with the same issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law. Deferral is not automatically invoked simply because the parties are involved in other legal proceedings.
[7] Some of the factors that may be relevant in deciding whether to defer consideration of an application before the Tribunal 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.
[8] It appears that the PSOA complaint, which the applicant initiated before filing his Application, is based on the same facts and issues as outlined in the Application. Through his complaint under the PSOA, the applicant is asking for a determination of whether his employer’s actions have breached the Code and it appears that the PSGB has the authority to address Code related issues brought before it.
[9] In the circumstances of this case, I find that deferral is appropriate. The Application will be deferred pending the outcome of the applicant’s complaint under the PSOA. The Tribunal directs the parties’ attention to Rules 14.3 and 14.4 which outline the process by which the Application may be brought back on after the applicant’s complaint to the PGSB has been concluded.
[10] I am not seized of this matter.
Dated at Toronto, this 24th day of November, 2008.
“Signed by”
____________________________________
Eric Whist
Vice-Chair