Blackman v. Ontario (Community Safety and Correctional Services), 2009 HRTO 970

Human Rights Tribunal of Ontario

B E T W E E N:

Violet Blackman

Applicant

-and-

Her Majesty the Queen in Right of Ontario, as represented by the Minister of Community Safety and Correctional Services, Paul Greer, James Verrinder, Steve Small and Mike Conry

Respondents

INTERIM DECISION

Adjudicator: Sherry Liang

Date: July 6, 2009

Citation: 2009 HRTO 970

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

1This is an Application filed on May 5, 2009 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the "Code"). On May 27, 2009, the Tribunal sent a Notice of Intent to Defer to the parties along with a copy of the Application. This Interim Decision deals with the issue of whether the Application should be deferred pending the completion of a related grievance proceeding.

2The applicant indicates in the Application that the facts of the Application are part of a union grievance proceeding that is still in progress. Initially, in response to the Notice of Intent to Defer, the applicant took the position that the Application should not be deferred. Following receipt of the respondents' submissions on the issue, the applicant now consents to deferral.

3The applicant enclosed with her Application a copy of a grievance dated October 4, 2008, filed on her behalf by the Ontario Public Service Employees Union (OPSEU). The grievance alleges discrimination in her employment on the basis of race, gender and ethnic origin.

4The 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.

5The 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 Social Services Administration Board v. O.P.S.E.U., Local 342, 2003 SCC 42).

6The 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, Tribunal's normal approach is to defer to the other proceeding.

7In this case, the applicant has a grievance proceeding to arbitration before the Grievance Settlement Board (the GSB), based on substantially the same facts as the Application, and alleging discrimination in her employment. The GSB has the authority to address the claims of discrimination. There are no circumstances that would cause the Tribunal to depart from its normal approach.

8The Application will therefore be deferred pending the completion of the grievance arbitration.

9The respondents filed a Request for an Order During Proceedings in which they ask to be permitted to defer the filing of a Response, should the Tribunal decided to defer the Application. This Request was not opposed. The deadline for filing a Response is suspended pending the return of the Application to the Tribunal.

10The 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 arbitration proceeding.

11I am not seized.