McDonald v. Ontario (Environment), 2010 HRTO 1771

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Cheryl McDonald Applicant

-and-

The Queen in Right of Ontario as represented by the Ministry of the Environment Respondent

INTERIM decision

Adjudicator: Ena Chadha Date: August 30, 2010 Citation: 2010 HRTO 1771 Indexed as: McDonald v. Ontario (Environment)

WRITTEN SUBMISSIONS BY

Cheryl McDonald, Applicant ) On her own behalf The Queen in Right of Ontario as ) represented by the Ministry of ) Jennifer Richards, Counsel the Environment, Respondent )

1The applicant filed an Application on March 15, 2010 under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment on the basis of race, ancestry, creed and age. The purpose of this Interim Decision is to deal with the issue of whether it is appropriate for the Tribunal to defer consideration of this Application pending the conclusion of the grievance process.

2The Application alleges that the respondent subjected the applicant to discriminatory treatment for several years with respect to employment opportunities. The applicant alleges that newer staff have received preferential treatment with respect to job training and advancement because they are younger. The applicant’s narrative notes that she has grievances for job competitions, age discrimination and union activities.

3On May 14, 2010, the Tribunal issued a Notice of Intent to Defer pending the resolution of another legal proceeding dealing with the subject matter of the Application pursuant to Rule 14 of the Tribunal’s Rules of Procedure. The Tribunal invited the applicant, the respondent and the applicant’s union, Ontario Public Service Employees Union (“OPSEU”) as an affected party, to file submissions within 14 days of May 14, 2010 as to why consideration of the Application should or should not be deferred.

4The applicant and the respondent filed submissions in response to the Notice of Intent to Defer. No submissions were received from the applicant’s union.

PARTIES’ SUBMISSIONS

5The applicant submits that the Tribunal should not defer her Application because she has not obtained satisfactory support from her union and the alternate avenues of redress have been ineffective and inefficient.

6The respondent requests that the Tribunal, pursuant to section 45 of the Code, defer consideration of the Application because there are on-going, multiple grievances with respect to same facts and issues raised in the Application. Specifically, the respondent indicates that the applicant has filed six grievances, which are at various stages of the grievance arbitration process. The grievances are as follows, in chronological order:

• December 21, 2005 - one grievance: allegations regarding unfair job competition;
• April 7, 2006 - one grievance: allegations of denial of job position because of age and union activities;
• November 5, 2007- three grievances: allegations of discrimination, harassing comments and unfair job competition;
• November 14, 2007 - one grievance: allegations regarding unsuccessful job competition.

7The respondent advises that the December 2005 grievance is currently in arbitration before the Grievance Settlement Board. Three days of hearings have already been held and an additional two days are scheduled for November 2010. The respondent has provided copies of all of the grievances and the Notice of Proceedings for the grievance currently in arbitration. The respondent filed a Response dated July 28, 2010, and in the Response have reiterated the request to defer.

8On August 19, 2010, the applicant filed a Reply and again asked the Tribunal to not defer her Application given the length of time that her grievances have been outstanding. The applicant acknowledges that she has grievances pertaining to age discrimination, unfair job competitions, discrimination due to union activities and health and safety concerns.

DECISION

9The 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 (Rule 14.1). The Tribunal will generally defer an application where there is an ongoing grievances under a collective agreement based on the same facts and issues.

10The Tribunal must also 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.

11There appears to be significant overlap between the facts and issues in the Application and the outstanding grievances. The main allegations in the grievances concern unfair job competitions and the matters raised in the Application also concern the same issues. As such, the allegations raised in this Application are part of grievance proceedings that are still in progress. The applicant did not identify any particular factors which would cause the Tribunal to depart from its normal approach.

12In these circumstances deferral is appropriate. The Tribunal orders the deferral of the Application pending the conclusion of the applicant’s grievances. I appreciate that the grievances have been outstanding for a number of years; however, there is no indication that these matters will not be resolved or dealt with. 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).

13If the applicant believes on conclusion of the grievance process that her human rights issues have not been adequately addressed, she may ask to have this Application brought back on before the Tribunal and the Tribunal will consider her request.

14The Application will therefore be deferred pending the completion of the grievance process. The 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.

15I am not seized of this matter.