Grosman v. Providence Care Mental Health Services, 2010 HRTO 1474

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Lucy Grosman

Applicant

-and-

Providence Care Mental Health Services

Respondent

INTERIM DECISION

Adjudicator: Brian Cook

Date: July 7, 2010

Citation: 2010 HRTO 1474

Indexed as: Grosman v. Providence Care Mental Health Services

1This is an Application filed on February 1, 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 applicant indicates in the Application that the facts of the Application are part of a union grievance proceeding that is still in progress, and enclosed a copy of the grievance filed on her behalf by her union, The Ontario Public Service Employees Union (the “union”). By correspondence dated May 25, 2010, the Tribunal issued a Notice of Intent to Defer. The Notice was sent to the applicant, the respondent and the union. The Tribunal noted that there was an ongoing grievance proceeding and asked for submissions about whether the Tribunal should defer consideration of the Application.

3Neither the applicant nor the union replied. The respondent filed submissions asking that the Tribunal defer consideration of the Application. The respondent advises that the grievance has been referred to arbitration and a date has been set with an arbitrator.

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. See Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 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, the Tribunal’s normal approach is to defer to the other proceeding.

7In this case, there is substantial overlap between the facts and human rights issues covered by the Application and those referred to in the grievance. I am satisfied that it is appropriate for the Tribunal to defer consideration of the Application until the grievance process has been concluded. If the applicant believes, on conclusion of the process, that her human rights issues have not been adequately addressed, she may ask to have her Application brought back on before the Tribunal.

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

9The 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 of this matter.