Bowes v. Ontario (Children and Youth Services), 2010 HRTO 1304

Human Rights Tribunal of Ontario

BETWEEN:

Steven Bowes Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Ministry of Children and Youth Services Respondent

INTERIM DECISION

Adjudicator: Jay Sengupta Date: June 8, 2010 Citation: 2010 HRTO 1304 Indexed as: Bowes v. Ontario (Children and Youth Services)

1This is an Application filed on January 27, 2010 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”). This Interim Decision deals with the issue of whether the Application should be deferred pending the completion of a related grievance proceeding.

2The respondent indicates in the Response, filed on May 14, 2010, that the facts of the Application are part of a union grievance proceeding that is still in progress, encloses a copy of the grievance filed on behalf of the Applicant by his union, Ontario Public Services Employees Union (OPSEU) and seeks to have the Application deferred pending conclusion of the grievance process.

3Although the applicant did not indicate in his Application that there was a grievance pending, he was given an opportunity to respond to the respondent’s request for deferral in his Reply. He appears not to dispute the respondent’s assertion that the same allegations contained in the present Application are the subject of a grievance that is underway.

4Although the union has been notified of the proceedings, it has not sought to intervene in the proceedings or notified the Tribunal of its position on the respondent’s request to defer.

5Both the applicant and respondent have indicated a willingness to enter in to mediation.

6The 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.

7The 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).

8The 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.

9In this case, it appears that there is substantial overlap between the facts and human rights issues covered by the Application and those referred to in the grievance. The matter is still live and the grievance process has not concluded. It is not yet apparent whether or not the applicant’s grievance will be referred to arbitration. But if the applicant believes, on conclusion of the process, that his human rights issues have not been adequately addressed, he may ask to have his Application brought back on before the Tribunal.

10The Application will therefore be deferred pending the completion of the grievance process.

11The 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.