Tisdale v. Ontario Clean Water Agency, 2009 HRTO 1474

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Katherine Tisdale Applicant

-and-

Ontario Clean Water Agency, John Thompson, Raja Moncer, Richard Laliberte and Todd Davis Respondents

INTERIM DECISION

Adjudicator: Jay Sengupta Date: September 15, 2009 Citation: 2009 HRTO 1474 Indexed as: Tisdale v. Ontario Clean Water Agency

1The applicant filed an Application with the Tribunal on June 15, 2009, alleging discrimination, harassment and reprisal in employment on the basis of disability, sex and age contrary to the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The respondents have made a request for deferral in their Response, filed on August 4, 2009. They allege that the substance of this Application is part of another proceeding, specifically an arbitration before the Grievance Settlement Board (the “GSB”), that has been scheduled for a hearing on December 7, 2009.

3The applicant opposes the Request to Defer and, in turn, has made a Request to Expedite the human rights application, citing concerns that she may not be fairly represented at her appearance before the GSB because she alleges one of the respondents approached a former union representative and offered to take him out for a drink to discuss the situation in the workplace. The respondents oppose the Request to Expedite and characterize it as entirely without merit.

4The purpose of this Interim Decision is to deal with these two requests.

DECISION

Request to Expedite

5The Tribunal’s Rules of Procedure provide for applications to be dealt with in an expedited manner in urgent circumstances. Rule 21.1 provides that an applicant may request that the Tribunal deal with an application on an expedited basis in circumstances which require an urgent resolution of the issues in dispute. Rule 21.2 requires an applicant seeking an expedited application to identify any urgent circumstances that may affect the fair and just resolution of the merits of the application and the harm that would result if the request is denied.

6In Weerawardane v. 2152458 Ontario Ltd., 2008 HRTO 53, at para. 9 the Tribunal held that, for a request to expedite to be granted, the applicant must demonstrate that the circumstances are truly urgent, requiring the resolution of the human rights dispute in a particularly rapid manner as compared with the time required to complete the Tribunal’s regular process.

7Having reviewed the materials, I cannot conclude that this Request to Expedite meets the high threshold required by the Tribunal’s jurisprudence. The applicant has asserted that she may not be fairly represented at her hearing before the Grievance Settlement Board. I find that this assertion to be speculative and without foundation.

8In the circumstances, the applicant has failed to demonstrate that expedition is necessary and, consequently, the Request to Expedite is dismissed.

Request to Defer

9The 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). 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.

10The Tribunal will generally defer an application where there is an ongoing grievance under a collective agreement based on the same facts and issues: see Krieger v. Toronto Police Services Board, 2008 HRTO 183 and Loranger v. Customs and Immigration Union, 2008 HRTO 432.

11In 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: see Blackman v. Ontario (Community Safety and Correctional Services), 2009 HRTO 970 citing Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42.

12The applicant has filed two grievances alleging “poisoned work environment” and “harassment” and seeking “full redress and a harassment free workplace”. The grievances appear to arise out of the same facts and allegations as set out in this Application.

13In these circumstances, the Tribunal finds the most fair, just and expeditious approach is to defer consideration of this Application pending the conclusion of the grievance arbitration. The two proceedings raise similar facts and issues, the grievance process is ongoing and a hearing date has been set.

14The Tribunal orders that this Application be deferred pending the conclusion of the grievance arbitration process. The Tribunal directs the parties’ attention to Rules 14.3 and 14.4 which outline the process by which a party may request, in accordance to Rule 19, the Tribunal to proceed with an application after the conclusion of another process.

15I am not seized of this matter.