Jessica Lalonde v. The Corporation of the County of Simcoe and Peter Woloszansky, 2010 HRTO 491

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jessica Lalonde

Applicant

-and-

The Corporation of the County of Simcoe and Peter Woloszansky

Respondents

interiM DECISION

Adjudicator: Alison Renton

Date: March 4, 2010

Citation: 2010 HRTO 491

Indexed as: Lalonde v. Simcoe (County)

1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c.H.19 as amended (the “Code”), on December 10, 2009 alleging discrimination in employment on the basis of disability and reprisal or threat of reprisal. The applicant states that she was dismissed from her employment in June 2009. A previous Interim Decision, 2010 HRTO 48, denied the applicant’s Request to Expedite the Application. This Interim Decision deals with the issue of whether the Application should be deferred pending the completion of a related grievance proceeding.

2The applicant attached a copy of her dismissal grievance dated June 22, 2009 to her Application (“the June grievance”). The June grievance states:

I/We the undersigned claim that: the employer has unjustly discharged the griever [sic]. This is in violation of Article 5:01, 7:05 along with any other clause, statute, policy or past practice that may pertain to this grievance.

I/We hereby request that: the employer reinstate employment and fully compensate the griever [sic] for any wages, benefits or rights that they are entitled to effective the date of the violation along with any other compensation that an arbitrator finds appropriate.

3In her Application, the applicant states that she did not want her Application to be deferred because the grievance does not reference the Code, and the Code issues will be ignored and unheard. She also states that the Canadian Union of Public Employees Local 5820 (“the union”), who is the bargaining agent for the applicant, has carriage over the grievance and may settle the grievance as it “sees fit” and she will have to sign a release with no further recourse to the Code.

4On January 12, 2010, the Tribunal sent to the applicant, respondents and union a Notice of Intent to Defer because of the June grievance and requested submissions as to why the consideration of the Application should, or should not be, deferred. The respondents delivered submissions dated February 8, 2010 stating that the June grievance is scheduled for arbitration on June 23, 2010 before an arbitrator. Neither the applicant nor the union filed any submissions and the time for doing so has now passed.

5The 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 of 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.

6The 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).

7The 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.

8In this case, it is apparent that there is a substantial overlap between the facts and remedies and the human rights issues covered by this Application and those referred to in the grievance. While the Application is broader than the face of the grievance, and makes allegations addressing the time period that the applicant went off work until her termination, both the Application and the grievance pertain to the dismissal of the applicant from her employment and both are seeking reinstatement as a remedy. The grievance is still outstanding, has been referred to arbitration, and the grievance process has not concluded. If the applicant believes, on conclusion of the grievance process, that her human rights issues have not been adequately addressed, she may ask to have her Application brought back on before the Tribunal.

9The Application will therefore be deferred pending the completion of the grievance process.

10The 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 process.

11I am not seized of this matter.