Larivière v. Ontario (Community Safety and Correctional Services), 2010 HRTO 772

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Marlene Larivière

Applicant

-and-

Her Majesty the Queen in Right of Ontario, as represented by the Ministry of Community Safety and Correctional Services, Peter Buglass and Neil Neville

Respondents

INTERIM DECISION

Adjudicator: Brian Cook

Date: April 7, 2010

Citation: 2010 HRTO 772

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

1This is an Application filed on January 26, 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 proceeding that is still in progress, and has enclosed a copy of the grievance filed on her behalf by her union, OPSEU (the “union”).

3On March 17, 2010, the Tribunal issued a Notice of Intent to Defer because it appeared that it might be appropriate to defer consideration of the Application until the grievance procedure has been concluded. The parties were invited to make submissions no later than two weeks after March 17, 2010. Submissions were received on behalf of the respondents. No submissions have been received from the applicant or from the union. The respondents confirm that there is an ongoing grievance procedure that raises the same issues as are raised in the Application. The respondents submit that deferral is appropriate.

4The 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 in 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.

5The 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).

6The 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.

7In this case, it is apparent that the Application raises the same issues as are raised in the grievance. In these circumstances, I am satisfied that it is appropriate for the Tribunal to defer consideration of the Application until the grievance process has been concluded. After the grievance process has been concluded, the applicant may ask that her Application be brought back on before the Tribunal.

8The Application will therefore be deferred pending the completion of the grievance process.

9The 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.