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Human Rights Tribunal of Ontario
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**B E T W E E N:**
Rhonda McKie
Applicant
-and-
Montage Support Services
Respondent
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## INTERIM DECISION
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**Adjudicator:** Jay Sengupta
**Date:** September 1, 2010
**Citation:** 2010 HRTO 1800
**Indexed as:** McKie v. Montage Support Services
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[1] This is an Application filed on March 25, 2010, under section 34 of Part IV of the [Human Rights Code](https://www.canlii.org/en/on/laws/stat/rso-1990-c-h19/latest/rso-1990-c-h19.html), 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 related grievance proceedings.
[2] The applicant indicates in the Application that the facts of the Application are part of a union grievance proceeding that is still in progress. Although requested to do so, she has not forwarded a copy of the grievance filed on her behalf by her union, Ontario Public Services Employees Union (the “union”).
[3] The respondent employer takes the position that the facts of three grievances filed on the applicant’s behalf on January 29, 2010, February 7, 2010 and February 10, 2010 are identical to the ones contained in the present Application. The respondent employer has sent copies of the three grievances and indicates that the matters are proceeding to arbitration. The respondent seeks deferral of the Application pending conclusion of the grievance process.
[4] Although directed to do so, the applicant has not communicated her position on the respondent’s request for deferral.
[5] The union has been sent a copy of the Application and Response and has not made any submissions regarding the issue of deferral.
[6] The 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.
[7] The 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](https://www.minicounsel.ca/scc/2003/42)).
[8] The 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.
[9] In this case, it is apparent that there is substantial overlap between the facts and human rights issues covered by the Application and those referred to in the grievances. The Application will therefore be deferred pending the completion of the grievance processes.
[10] 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 processes.
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Dated at Toronto, this 1<sup>st</sup> day of September, 2010.
“Signed by”
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Jay Sengupta
Vice-chair
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minicounsel