Syska v. Ontario (Attorney General), 2009 HRTO 2175

Human Rights Tribunal of Ontario

Between:

Ruth Syska Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Attorney General and Paul Cormier Respondents

Interim Decision

Adjudicator: Brian Eyolfson Date: December 15, 2009 Citation: 2009 HRTO 2175 Indexed as: Syska v. Ontario (Attorney General)

1This is an Application filed on July 6, 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 on the basis of sex and family status in employment.

2In their Response, the respondents submitted that the applicant also filed a grievance alleging the same acts of discrimination as raised in the Application. The respondents requested that the Application be deferred until the grievance proceeding is completed. They attached a copy of a grievance, dated September 2, 2009, alleging the respondent employer refused to consider the applicant for promotional opportunities and assignments based on sex, family status and disability. The grievance also alleges a violation of the Code. The respondents indicated that a stage 2 grievance meeting would be held.

3The Tribunal notified the applicant of the respondents' Request to Defer and provided her with an opportunity to file a Reply, addressing the Request to Defer. The applicant did not file a Reply and the time for doing so has passed.

4On October 16, 2009, the applicant's union, the Ontario Public Service Employees Union (the "union"), advised the Tribunal that it received a copy of the respondents' Response and Request to Defer in this matter but it had not received a copy of the Application. On October 19, 2009, the Tribunal provided a copy of the Application to counsel for the union and by Interim Decision, 2009 HRTO 1938, the Tribunal provided the union with an opportunity to make submissions regarding whether consideration of this Application should be deferred until such time as the grievance is resolved. The union has not made submissions and the time for doing so has passed.

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 this case, it is apparent that there is substantial overlap between the facts and human rights issues covered by the Application and those referred to in the grievance. While it is not clear if and when the grievance may proceed to arbitration, there is no indication at this point in time that the grievance proceeding is not ongoing. If the grievance does proceed to arbitration, the arbitrator will have the authority to determine the human rights issues raised in the grievance. If the applicant believes on conclusion of the grievance process that her human rights issues have not been adequately addressed, she may ask to have her Application brought back on before the Tribunal and the Tribunal will consider her request.

9The Application will therefore be deferred pending the completion of the grievance process. The 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.