Cox v. Ontario (Community Safety and Correctional Services), 2010 HRTO 2081

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Leroy Cox Applicant

• and-

Her Majesty the Queen in Right of Ontario as represented by the Minister of Community Safety and Correctional Services and Ontario Public Service Employees Union Respondents

INTERIM decision

Adjudicator: Ena Chadha Date: October 14, 2010 Citation: 2010 HRTO 2081 Indexed as: Cox v. Ontario (Community Safety and Correctional Services)

1The applicant filed this Application on June 21, 2010, under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant alleges that the Ministry of Community Safety and Correctional Services (“Ministry”) and the Ontario Public Service Employees Union (“Union’) have subjected him to discrimination with respect to employment and membership in a vocational association on the basis of race and colour.

2The Union filed its Response on September 15, 2010.

3The Ministry filed its Response on September 16, 2010, wherein it requests the Tribunal defer the Application pending the resolution of a grievance which is currently in progress.

4On September 22, 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 to file submissions no later than October 6, 2010 as to why consideration of the Application should or should not be deferred.

5The applicant filed his Reply on October 6, 2010, wherein he opposes the request to defer.

BACKGROUND

6This Application alleges a continuation of events that form the basis of a previous Application filed by the applicant in October 2009 against the same Ministry.

7By way of an Interim Decision, 2009 HRTO 2046, the 2009 Application was deferred pending the conclusion of the applicant’s grievance before the Grievance Settlement Board (“GSB”). The applicant is involved in a lengthy and complicated grievance process, which is part of multiple on-going grievances filed by a group of employees represented by the Union. The applicant’s grievance was heard by the GSB in February and May 2010 and it appears that a decision is currently on reserve.

8The 2009 Application alleges that Ministry failed to protect the applicant from a poisoned work environment, which included the circulation of racist and threatening letters. The present Application makes the following allegations:

• In April 2010 the applicant was again targeted in a racist letter;
• The Ministry has failed to take adequate measures to investigate and curtail the on-going poisoned work environment; and
• The Union has failed to act in the applicant’s interest, including refusing the applicant independent standing, refusing to allow the applicant to withdraw his grievance and supporting the deferral of the 2009 Application.

REQUEST TO DEFER

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). 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.

10Some factors that have been identified as 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 types 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: see Baghdasserians v. 674469 Ontario, 2008 HRTO 404.

11The Tribunal will generally defer an application where there is an ongoing grievance under a collective agreement based on the same facts and issues. I see no reason to depart from this approach, particularly given the advanced stage of the applicant’s grievance. I find that deferral is necessary not only to avoid inconsistent findings of fact and credibility, but also in order to promote the Tribunal’s goals of just, fair and expeditious proceedings.

12The applicant submits that deferral is not appropriate because the allegation in regards to the April 2010 letter is not part the applicant’s grievance or the 2009 Application. I do not agree that there is clear separation of issues simply because the current Application includes new allegations. In my view there are overlapping concerns between the grievance and the two Applications, as well as similar allegations and factual linkages between the 2009 Application and the current Application. Moreover, similar and significant remedies have been sought through the grievance and both Applications. The interrelated nature of the grievance and the two Applications is evidenced through the volume of background information, chronologies and documentary materials submitted by all the parties to assist the Tribunal to understand the applicant’s human rights concerns in the present case.

13In these circumstances deferral is appropriate. The Tribunal orders the deferral of the Application pending the conclusion of the applicant’s grievance.

14Where 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).

15I am not seized of this matter.