Trip v. Ontario (Community Safety and Correctional Services), 2010 HRTO 2259

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Carrie Trip

Applicant

-and-

Her Majesty in Right of Ontario as represented by the Minister of Community Safety and Correctional Services, Kenneth Storey, Laurie Laing, Sal Mastrella, Shawn Winsley and Terry Bradley

Respondents

INTERIM DECISION

Adjudicator: Sheri D. Price

Date: November 12, 2010

Citation: 2010 HRTO 2259

Indexed as: Trip v. Ontario (Community Safety and Correctional Services)

1The Application was filed on August 17, 2010, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination on the basis of sex and sexual harassment with respect to employment during the period from 2005 to July 5, 2010.

2On September 28, 2010, the Tribunal sent a Notice of Intent to Defer to the parties indicating that the Tribunal had determined that it might be appropriate to defer consideration of the Application pending the resolution of another legal proceeding (i.e. a grievance filed by the applicant’s trade union) dealing with the subject-matter of the Application. The Tribunal directed the parties to deliver and file any written submissions which they wished to make in respect of the deferral issue within 14 days of the date of the Notice of Intent to Defer.

3In her Application, the applicant acknowledges that the facts of the Application are part of a union grievance which is still in progress. She provided the Tribunal with a copy of the August 12, 2010 grievance which was filed on her behalf by her trade union, Ontario Public Service Employees’ Union (“OPSEU”). The grievance alleges that the respondent employer, Ministry of Community Safety and Correctional Services, violated health and safety legislation as well as the provisions of the Code and various provisions of the collective agreement “by fostering a poisoned work environment and subjecting [the applicant] to harassment and discrimination.”

4The applicant did not file submissions with respect to the deferral issue in response to the Tribunal’s Notice of Intent to Defer.

5The respondents submit that, as the above-noted grievance remains outstanding, the Tribunal ought to defer consideration of the Application pending adjudication of the grievance by the Grievance Settlement Board pursuant to the terms of the Crown Employees Collective Bargaining Act, 1993, S.O. 1993, c. 38. The respondents point out that the Grievance Settlement Board has the authority to interpret and apply the provisions of the Code pursuant to s. 2(1) of the CECBA, which incorporates s. 48(12)(j) of the Labour Relations Act, 1995, S.O. 1995, c. 1, Sch. A.

6The 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 seeks to ensure that proceedings dealing with the same facts or issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law. The 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.

7Some, if not all, of the facts and issues raised in this Application are part of a grievance and arbitration process that is still in progress. Both the Application and the grievance relate to the alleged sexual harassment of the applicant in the workplace and the alleged fostering of a poisoned work environment. Since the issues in the Application and the grievances overlap significantly, proceeding with the Application at the Tribunal could very possibly lead to inconsistent decisions on the facts and/or legal issues raised in the Application and the grievance. The primary purpose of deferring an Application is to avoid such potential inconsistency. I find that, in all of the circumstances, deferring the Application is appropriate.

8The parties’ attention is drawn to Rules 14.3 and 14.4 of the Tribunal’s Rules of Procedure, which address how the Application may be brought back on before the Tribunal, following conclusion of the grievance and arbitration procedure. The Rules of Procedure are available on the Tribunal’s website, www.hrto.ca under “New Applications”.

9I am not seized of this matter.