Phillip Durdle v. Her Majesty the Queen in Right of Ontario as respresented by the Ministry of Community Safety and Correctional Services and the Ministry of Children and Youth Services, 2009 HRTO 279

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Phillip Durdle

Applicant

-and-

Her Majesty the Queen in Right of Ontario as respresented by the Ministry of Community Safety and Correctional Services and the Ministry of Children and Youth Services

Respondents

INTERIM DECISION

Adjudicator: Naomi Overend

Date: March 11, 2009

Citation: 2009 HRTO 279

Indexed as: Durdle v. Ontario (Community Safety and Correctional Services)

1This Interim Decision deals with the respondents’ request to defer the applicant’s Application until such time as his grievance filed by the Ontario Public Sector Employees Union, Local 551 (“OPSEU”) has been completed.

2The applicant filed his Application on December 23, 2008 under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”), alleging discrimination in employment by the respondents. That same day he also signed a grievance setting out the same allegations and asking for the same relief as set out in his Application to the Human Rights Tribunal of Ontario.

3The applicant set out his opposition to the respondent’s deferral request in his Reply. He suggests, among other things, that the Grievance Settlement Board (“GSB”), which would be the adjudicative body hearing his grievance, lacks objectivity and fairness.

4He also suggests that OPSEU is “as responsible as the employer” for some of the matters raised in his Application, although he does not particularize which issues those are. He also states that his past experience with OPSEU has demonstrated to him that it is “unprofessional and incompetent” and that it “is not able to effectively coordinate and represent the complainant.” The applicant does not provide any details about why he reached this conclusion other than to say that grievance officers are slow to return calls and grievances “often take two to three years to by heard.”

5The 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 particular circumstances of each case, whether deferral is the most fair, just and expeditious way of proceeding with the application.

6In this case, the parties have not identified any circumstances that would cause the Tribunal to depart from its normal approach. Specifically, the applicant, other than making unsubstantiated assertions about the objectivity and fairness of the GSB and the professionalism and competence of OPSEU, has provided no reason why the grievance process is ill-suited to deal with the substance of his Application.

7In the circumstances of this case, the Tribunal is of the view that deferral is the most fair, just and expeditious way of proceeding with this Application. The Tribunal orders the deferral of this Application pending the conclusion of the applicant’s grievance. The Tribunal directs the parties’ attention to Rules 14.3 and 14.4 which outline the process by which the Application may be brought back on after the grievance has been concluded

8I am not seized of this matter.