Amurao v. Ontario (Community and Social Services), 2010 HRTO 2212

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Fidela Amurao Applicant

-and-

Her Majesty the Queen in Right of Ontario as Represented by the Ministry of Community and Social Services, Nancy Liston, Marg Rappolt, Lois Bain, David Walker, and Silvia d’Uzo Respondents

INTERIM DECISION

Adjudicator: Michelle Flaherty Date: November 5, 2010 Citation: 2010 HRTO 2212 Indexed as: Amurao v. Ontario (Community and Social Services)

Written Submissions By

Fidela Amurao, Applicant ) Cecil Norman, Representative Ontario (Community and ) Jamie Kneen, Counsel Social Services), Respondent )

1This Application, filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”), raises allegations that the respondents discriminated against the applicant in the context of employment on the basis of race, ancestry, place of origin, ethnic origin, and association with a person identified by a prohibited ground under the Code. The Application also alleges reprisal or threat of reprisal.

2In essence, the applicant argues that she was discriminated against and harassed during the course of an investigation process and that the grounds listed in her Application were a factor in the termination of her employment. She also alleges that the termination of her employment was a reprisal because the respondents knew that she was about to assert rights under the Code.

3In the Application, the applicant indicates that the facts of the Application are also part of a grievance proceeding. The applicant has grieved the termination of her employment and alleges that her rights were violated under the collective agreement.

4On September 20, 2010, the Tribunal issued a Notice of Intent to Defer (“Notice”) indicating that it may be appropriate to defer consideration of the Application pending the conclusion of the grievance proceeding. The Tribunal invited submissions from the parties and from Ontario Public Service Employees Union (“Union”) regarding the deferral issue.

5The applicant filed submissions opposing the deferral. She argues that the grievance proceeding is at an early stage as no decision has been made to refer it to hearing. She argues that the Tribunal is the most appropriate forum for determining the issues raised, because the Tribunal can award broader public interests remedies than what may be available in the grievance proceeding. The applicant also argues that the issues raised in grievance and the Application are not identical.

6The respondents submit that the grievance is at a relatively advanced stage. The parties have attempted mediation and that the grievance has been referred to the joint file review process, where the parties will address the scheduling of the grievance arbitration. The respondents argue that the allegations contained in the grievances and those contained in the Application are substantially similar and that, in any event, they are most appropriately dealt with in the statutorily based arbitration process set out in the collective agreement.

DECISION

7Section 45 of the Code gives the Tribunal the power to defer an application in accordance with its Rules of Procedure (“Rules”).

8Rule 14.1 of the Rules states:

The Tribunal may defer consideration of an Application, on such terms as it may determine, on its own initiative, at the request of an Applicant under Rule 7, or at the request of any party.

9The Tribunal will generally defer an application where there is an ongoing grievance under a collective agreement based on the same facts and issues. However, the 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.

10For the purpose of deferral, the issue not whether the facts, issues and remedies claimed are identical. Deferral of an application ensures that proceedings dealing with similar or overlapping issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law.

11I am satisfied that, in this case, many of the facts and issues raised by this Application are part of an ongoing grievance process. Although the Application may seek public interest remedies that have not been raised in the grievance process, I am not satisfied that this is a reason to proceed with the Application in the circumstances. I note that grievance arbitrators have the ability to implement and enforce the substantive rights and obligations of human rights: See Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42.

12Accordingly, the Application is deferred pending the conclusion of the grievance proceeding.

13The Tribunal directs the parties’ attention to Rules 14.3 and 14.4, which outline the procedure by which a party may request that the Application proceed once the grievance proceeding is complete.

14I am not seized of this matter.