Nash v. Ontario (Attorney General), 2010 HRTO 1530

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Stephanie Nash

Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Attorney General, Crystal Smith, Colette Dwyer and Heather Elliott

Respondents

INTERIM DECISION

Adjudicator: Ken Bhattacharjee

Date: July 14, 2010

Citation: 2010 HRTO 1530

Indexed as: Nash v. Ontario (Attorney General)

INTRODUCTION

1The purpose of this Interim Decision is to address whether the Application should be (a) dismissed because another proceeding has in whole or in part appropriately dealt with the substance of the Application, and (b) deferred pending the completion of a related grievance proceeding.

BACKGROUND

2The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), on February 9, 2010, which alleged that the respondents harassed and discriminated against her and subjected her to reprisal with respect to employment.

3In section 14 of the Application, the applicant acknowledged that the facts of the Application are part of another proceeding that is still in progress, but did not request that the Tribunal defer her Application until the other proceeding is completed. After she filed her Application, she filed a copy of a union grievance dated February 16, 2010, which alleged that management was violating the collective agreement by "creating and allowing for a poisoned work environment," and requested as a remedy that management "cease & desist all discrimination & harassment."

4In section 15 of the Application, the applicant denied that the facts of the Application were part of another proceeding that is now completed.

5The organization respondent and the individual respondents, Crystal Smith and Colette Dwyer, filed a Response on May 26, 2010, which denied the allegations of harassment, discrimination and reprisal. The Response also requested that the Tribunal defer the Application because the applicant's grievance was referred to the Grievance Settlement Board ("GSB") for a hearing, and the substance of her grievance is the same as the allegations in her Application. The respondents' counsel subsequently sent the Tribunal an e-mail dated June 4, 2010, which stated that the GSB hearing was scheduled for August 12, 2010.

6The individual respondent, Heather Elliott, filed a Response on June 11, 2010, which denied the allegations of harassment, discrimination and reprisal. She also requested that the Tribunal dismiss the Application because another proceeding, specifically, an investigation by the organization respondent pursuant to its Workplace Discrimination and Harassment Prevention Policy, had appropriately dealt with the substance of the Application. She attached a copy of the Final Investigation Report to her Response.

7The applicant filed a Reply on June 22, 2010, which stated that she filed the grievance after new incidents occurred on February 3, 4, 7 and 10, 2010. She admitted that new incidents are "interconnected" with harassment and discrimination allegations in her human rights Application, but requested that the Tribunal defer, rather than dismiss, her Application, if the Tribunal decides there could be a duplication of proceedings. She also admitted that the GSB hearing was scheduled for August 12, 2010.

DISMISSAL

8Section 45.1 of the Code and Rule 22 of the Tribunal's Rules of Procedure provide that the Tribunal may dismiss an application, in whole or in part, if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.

9The purpose of section 45.1 of the Code was set out in Campbell v. Toronto District School Board, 2008 HRTO 62 at para. 61:

…section 45.1 provides a basis for the Tribunal to preclude the re-litigation of issues that have been dealt with in another forum. This provision, along with other parts of the Code, gives expression to a legislative intention to avoid the duplication of proceedings.

10This Tribunal has also held that an internal employer investigation is not a "proceeding" within the meaning of section 45.1 of the Code: see, for example, Maurer v. Metroland Media Group, 2009 HRTO 200 at para. 11.

11The other proceeding that the respondent Elliott identified was an internal employer investigation. Accordingly, her Request to dismiss the Application is denied.

DEFERRAL

12Section 45 of the Code provides that the Tribunal may defer an Application in accordance with the Tribunal's Rules of Procedure. Rule 14.1 of the Tribunal's Rules provides that the Tribunal may defer consideration of an Application, on such terms as it may determine, on its own initiative or at the request of any party. The Tribunal will consider, in light of the particular circumstances of each case, whether deferral is the most fair, just and expeditious way of proceeding with the Application. The Tribunal will generally defer an application where there is an ongoing grievance under a collective agreement based on the same facts and issues.

13In Bhagdasserians v. 674460 Ontario, 2008 HRTO 404, the Tribunal made the following general comments about deferral at paras. 18-20:

Deferral of an application ensures that proceedings dealing with the same issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law. However, deferral is not automatically invoked simply because the parties are involved in other legal proceedings.

Some of the factors that may be relevant in deciding whether to defer consideration of an application before the Tribunal are the subject matter of the other proceeding, the nature of the other proceeding, the type of remedies available in the other proceeding, and whether it would be fair overall to the parties to defer, having regard to the status of each proceeding and the steps that have been taken to pursue them.

14In my view, deferral is the most fair, just and expeditious way of proceeding with the Application. Although the applicant filed her Application with this Tribunal shortly before she filed her grievance, other factors weigh in favour of deferral, including the potential for duplication of evidence in two concurrent proceedings, the possibility of inconsistent findings of fact and law, the fact that the grievance proceeding is at a more advanced stage (the GSB hearing is scheduled for August 12, 2010), and the fact that the applicant is not opposed to deferral.

15Accordingly, the Tribunal orders the deferral of the Application pending the conclusion of the grievance proceeding.

16Where a party wishes to proceed with an Application which has been deferred, the party must make a Request for an Order During Proceedings in accordance with Rule 19 within 60 days after the conclusion of the other proceeding (Rules 14.3 and 14.4).

17I am not seized of this matter.