Brady v. Ontario Clean Water Agency, 2009 HRTO 1393

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Meaghan Brady

Applicant

-and-

Ontario Clean Water Agency, Christine Fulton, Raja Moncer, Richard Laliberte, Todd Davis and Darren MacArthur

Respondents

INTERIM DECISION

Adjudicator: Sheri D. Price

Date: September 2, 2009

Citation: 2009 HRTO 1393

Indexed as: Brady v. Ontario Clean Water Agency

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”) alleging that the respondents discriminated against the applicant on the basis of disability, sex and sexual orientation in respect of employment and engaged in reprisals against the applicant contrary to the Code.

2This Interim Decision addresses the respondents’ request that the Tribunal defer consideration of this Application pending the conclusion of the grievance and arbitration procedure in respect of grievances which, they submit, raises some or all of the same facts and issues as the Application.

3The applicant’s trade union, Ontario Public Service Employees Union (“OPSEU”), filed three grievances against the respondent employer, Ontario Clean Water Agency, one on August 22, 2008 and two on September 4, 2008, alleging, respectively, poisoned work environment, harassment and unjust dismissal. By way of remedy, the grievances cumulatively seek full redress and a workplace free of harassment. The respondents submit that the human rights issues in the Application and the facts upon which they are based are the same as those raised in the three grievances.

4The three grievances were referred to arbitration pursuant to the terms of the collective agreement between OPSEU and the respondent employer and the Crown Employees Collective Bargaining Act, 1993, S.O. 1993, c. 38, as amended. An adjudicator has been appointed to hear the grievances at the Grievance Settlement Board (“GSB”) on November 16, 2009.

5In her Application, the applicant acknowledges that the facts of the Application are part of the grievance proceeding which is still in progress. However, the applicant opposes deferral of the Application and indeed has filed a Request asking rather that the Application be expedited by the Tribunal on the basis of the applicant’s “increasingly fragile mental state”. According to the applicant, the respondent employer has had “more than enough time” to respond to all of the applicant’s allegations; and that the respondents’ lack of efficiency in dealing with the allegations has had a negative impact on the applicant emotionally, physically and financially.

DECISION

6The 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 will generally defer an application where there is an ongoing grievance under a collective agreement based on the same facts and issues. However, the Tribunal must also consider, in light of the particular circumstances of each case, whether deferral is the most fair, just and expeditious way of proceeding with the application.

7The facts and issues raised by this Application are part of a grievance and arbitration process that is still in progress and the applicant has not identified any circumstances that would cause the Tribunal to depart from its normal approach of deferring to the grievance and arbitration procedure.

8In this case, the human rights issues in the Application are before an adjudicator who, pursuant to the terms of the Crown Employees Collective Bargaining Act, 1993, has the necessary statutory authority to determine those issues and to provide the applicant with an effective remedy, if her human rights have been violated. Since the issues in the Application and the grievances overlap significantly, proceeding with the Application at the Tribunal could very possibly lead to inconsistent decisions on the facts and/or legal issues raised in the Application and the grievances. The primary purpose of deferring an Application is to avoid such potential inconsistency. I find that, in all of the circumstances, deferring the Application is appropriate.

9The parties’ attention is drawn to Rules 14.3 and 14.4 of the Tribunal’s Rules of Procedure which address how the Application may be brought back on before the Tribunal, following conclusion of the grievance and arbitration procedure. The Rules of Procedure are available on the Tribunal’s website, www.hrto.ca under “New Applications”.

10In light of the decision to defer the Application pending the completion of the grievance and arbitration proceeding, the applicant’s Request to Expedite is consequently denied.

11I am not seized of this matter.