HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Andrew Moore Applicant
-and-
The Crown in Right of Ontario as Represented by the Ministry of Community Safety and Correctional Services Respondent
INTERIM DECISION
Adjudicator: Brian Eyolfson Date: July 30, 2009 Citation: 2009 HRTO 1171 Indexed as: Moore v. Ontario (Ministry of Community Safety and Correctional Services)
1This is an Application filed on March 31, 2009 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”), alleging discrimination in employment on the basis of disability. In the Response to the Application, the respondent requests that the Application be deferred pending the completion of a grievance proceeding. This Interim Decision deals with the issue of whether the Application should be deferred. The style of cause has been amended to reflect the full legal name provided by the respondent in its Response.
2The respondent submits that the Tribunal should defer the Application as the applicant has filed two grievances, one of which is, in substance, identical to the Application. The respondent included with its Response a copy of a grievance dated September 24, 2008 alleging that the applicant is experiencing harassment, discrimination and intimidation in his workplace.
3The Tribunal shared the respondent’s Response with the applicant and indicated that he may file a Reply to the Response by June 30, 2009 and that his Reply must address the respondent’s request to defer. The applicant has not filed a Reply.
4The 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 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.
5The 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 (Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42).
6The 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, Tribunal’s normal approach is to defer to the other proceeding (Blackman v. Ontario (Community Safety and Correctional Services, 2009 HRTO 970).
7In the present case, the applicant has a grievance based on substantially the same facts as the Application, alleging that he is experiencing harassment and discrimination in the workplace. While it is not clear what stage in the process the grievance is at, if it proceeds to arbitration, an arbitrator will have the authority to deal with the human rights issues raised in the grievance. There are no circumstances that would cause the Tribunal to depart from its normal approach.
8The Application will therefore be deferred pending the 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.
Dated at Toronto this 30^th^ day of July, 2009.
“Signed By”
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Brian Eyolfson Vice-chair