Theresa McNally v. Her Majesty the Queen in Right of Ontario as represented by the Minister of Transportation, 2009 HRTO 1309

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E EN

Theresa McNally

Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Minister of Transportation

Respondent

INTERIM DECISION

Adjudicator: Alan Whyte

Date: August 25, 2009

Citation: 2009 HRTO 1309

Indexed as: McNally v. Ontario (Transportation)

1This is an Application filed on March 17, 2009 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.

2The applicant indicates in the Application that the facts of the Application are part of a union grievance proceeding that is still in progress. The respondent enclosed a copy of a grievance filed on the applicant’s behalf by her union, the Ontario Public Service Employees’ Union (the “union”). The grievance makes allegations of violations of the Code and seeks damages for discrimination and mental stress.

3The respondent alleges that the grievance raises the very same issues as are raised in this Application. The respondent also refers to the applicant’s five outstanding grievances that are being litigated at the Grievance Settlement Board. They allege that the issues raised in this Application regarding failure to accommodate the grievor and failure to pay sick leave benefits will be dealt with in the arbitration proceedings, and reference is made to scheduled hearing dates of August 27 and September 16, 2009.

4In her Reply, the applicant confirms that there are five outstanding grievances at the Grievance Settlement Board, but she states that the two above-mentioned hearing dates will not resolve the issues raised by this Application.

5The 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 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 (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 the present case, the applicant has a grievance based on substantially the same facts as the Application, alleging that she was not accommodated contrary to the Code. While it is not clear exactly 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.