Johnston v. Ontario (Community Safety and Correctional Services), 2010 HRTO 2521

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jeffrey Johnston

Applicant

-and-

Her Majesty the Queen in right of Ontario as represented by the Ministry of Community Safety and Correctional Services

Respondent

INTERIM DECISION

Adjudicator: Eric Whist Date: December 22, 2010 Citation: 2010 HRTO 2521 Indexed as: Johnston v. Ontario (Community Safety and Correctional Services)

WRITTEN SUBMISSIONS BY

Jeffrey Johnston, Self-represented Applicant

Her Majesty the Queen in right of Ontario as represented by the Ministry of Community Safety and Correctional Services, Respondent Ava Isaacson, Representative

1This is an Application filed on September 21, 2010 under section 34 of Part IV of the Human Rights Code, 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 a related grievance proceeding.

2The applicant indicates that the facts of the Application are part of a union grievance still in progress. As a result the Tribunal issued a Notice of Intent to Defer dated November 9, 2010 in which it indicated that it might be appropriate for the Tribunal to defer consideration of the Application pending the resolution of the applicant’s grievance. The Tribunal indicated to the parties and to the applicant’s union, the Ontario Public Service Employees Union, that they could make submissions as to why consideration of the Application should or should not be deferred. The Tribunal has received written submissions from the applicant and the respondent.

3The applicant submits that his Application should not be deferred because the respondent may unduly delay his related grievance by raising procedural issues when the matter proceeds to arbitration before the Grievance Settlement Board (“GBS”). The applicant is of the view that the respondent has delayed other similar grievances. The respondent submits that the Tribunal should defer the Application on the basis that there are no extraordinary circumstances that would justify the Tribunal departing from its normal approach of deferring Applications where there is an ongoing grievance under a collective agreement based on the same facts and issues. The respondent states that the applicant has, in fact, two related grievances (Grievance GSB# 2007-2472 and Grievance GSB# 2009-2075) and that they are now being consolidated and will be scheduled to be heard together by the GSB on January 19 and 20, 2011.

DECISION

4The 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 of the Tribunal’s Rules of Procedure). The purpose of deferring an application is to ensure that proceedings dealing with some or all of the same issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law. Given this purpose, 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, in each case, the Tribunal must consider, in light of the particular circumstances, whether deferral is the most fair, just and expeditious way of proceeding with the Application.

5Having considered the circumstances of this case I order the deferral of the applicant’s Application pending the conclusion of the arbitration process that is scheduled to start imminently. 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 as was affirmed by the Supreme Court of Canada. See Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42).

6I am satisfied that to proceed with the Application at this time would be an inefficient and inappropriate use of the resources of the Tribunal and the parties and would not be the most fair, just or expeditious way to proceed.

7The Tribunal directs the parties’ attention to Rules 14.3 and 14.4 which outline the process by which the Application may be brought back on after the grievance process has been concluded.

8I am not seized.