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 represented by the Ministry of Community Safety and Correctional Services and the Ministry of Children and Youth Services
Respondents
RECONSIDERATION DECISION
Adjudicator: Naomi Overend
Indexed as: Durdle v. Ontario (Community Safety and Correctional Services)
INTRODUCTION
1This Interim Decision deals with the applicant’s request to reconsider my earlier Interim Decision, 2009 HRTO 279, deferring his 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 on the basis of disability by the respondents. That same day he also signed a grievance alleging a breach of the Code (as well as the Collective Agreement) asking for the same relief as set out in his Application to this Tribunal.
3The Interim Decision deferring his Application is dated March 11, 2009. Subsequent to that decision, the Applicant wrote an email to OPSEU asking it to expedite the hearing of his grievance. The applicant advised the Tribunal thats following his request to expedite, he was told that hearing dates for his grievance were scheduled for November 2009. Moreover, the style of cause on the grievance names only his current Ministry (Children and Youth Services), which he believes means that the allegations against his previous Ministry (Community Safety and Correctional Services), will be dealt with at some later time.
4The applicant takes the position that this represents an unacceptable delay in dealing with the merits of his Application/grievance.
RELEVANT LEGISLATIVE PROVISIONS
5Rule 26.1 provides that a party "may request reconsideration of a final decision of the Tribunal” [emphasis added]. A decision to defer is not a “final” decision of the Tribunal and, thus, the reconsideration provisions are inapplicable to this situation (see Dioba v. Ontario (Government Services) 2009 HRTO 651).
6The Rules do provide for a deferred application to be brought back before the Tribunal:
14.3 Where a party wishes the Tribunal to proceed with an Application which has been deferred the request must be made in accordance with Rule 19.
14.4 Where an Application was deferred pending the outcome of another legal proceeding, a request to proceed under Rule 14.3 must be filed no later than (sixty) 60 days after the conclusion of the other proceeding, must set out the date the other legal proceeding concluded and include a copy of the decision or order in the other proceeding, if any.
14.5 The Tribunal may, on its own motion, require a deferred Application to proceed in appropriate circumstances.
7The applicant did not set out his request to proceed with his Application in accordance with Rule 19, which requires such request to be brought by way of a Request for Order During Proceeding (Form 10). In any event, Rule 14.4 clearly anticipates that such requests be made after the conclusion of the proceeding to which the Application was deferred.
8While the applicant cannot properly bring a Request for Order under Rule 14.4 until his grievance is concluded, the Rules do appear to provide for him to request, at any time, that the Tribunal exercise its discretion to proceed under Rule 14.5 on the basis that the appropriate circumstances exist.
ANALYSIS
9Are the circumstances raised by the applicant sufficient for the Tribunal to exercise its discretion to proceed with the Application before the grievance in this matter?
10The applicant bases his request on two reasons. The first is that the delay in having his grievance heard is unacceptable. He wishes to have the Tribunal accept “jurisdiction” over his Application and then exercise its discretion under Rule 21.1 to deal with it on an expedited basis. The second reason for not deferring to the grievance process is that grievances are often “informally” settled at the outset of the hearing without addressing the wider, systemic problems.
11The systemic problem that the applicant states must be addressed without delay is the alleged failure of the Toronto Jail to routinely offer Critical Incident Debriefing (“CID”) to guards after their involvement in traumatic incidents such as the death of a colleague or inmate. It is his position that the failure to provide CID can lead to Post-Traumatic Stress Disorder in vulnerable individuals, which, in turn, leads to further emotional suffering and possibly even suicide.
12The first reason – that the Tribunal has the legislative authority to expedite his Application whereas his grievance (or a portion thereof) will not be heard until November 2009 – presupposes that the Application would, in fact, be expedited by the Tribunal. However, the Applicant failed to make such a request at the time he filed his Application in December 2008 even though the alleged harm was known at the time. Indeed, he did not raise the possibility of expediting the matter until May 2009, after the decision to defer had been made, and after OPSEU had considered his request to expedite and set hearing dates for November 2009. In these circumstances, it is unlikely that a request to expedite would be granted.
13The second reason – that matters often settle at the outset of grievance hearings without addressing the public interest remedies – appears to be based on the erroneous assumption that the applicant would be obliged to ratify a settlement no matter how objectionable he finds it. Moreover, if OPSEU is not prepared to pursue the systemic remedies, they can be raised before this Tribunal assuming the circumstances are otherwise appropriate. A decision to defer is not a decision to dismiss an application. Under Rule 14.3, a party can request that the Tribunal proceed with an application once the other proceeding is concluded.
14For these reasons, I am not prepared to exercise my discretion to require that this deferred Application proceed.
15I am not seized of this matter.
Dated at Toronto, this 6th day of July, 2009.
“Signed by”
Naomi Overend
Vice-chair