Achampong v. Ontario (Government Services), 2011 HRTO 1417

Human Rights Tribunal of Ontario

B E T W E E N:

Ethel Achampong

Applicant

-and-

The Crown in Right of Ontario as represented by the Ministry of Government Services and Mark Dittenhoffer

Respondent(s)

INTERIM DECISION

Adjudicator: Brian Cook

Date: July 28, 2011

Citation: 2011 HRTO 1417

Indexed as: Achampong v. Ontario (Government Services)

1This is an Application filed on April 5, 2011 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Application was delivered to the respondents who filed a Request for Order During Proceedings, asking that the Tribunal defer further consideration of the Application pending the conclusion of a related grievance proceeding.

2The applicant is a non-unionized member of the Ontario Public Service. She filed a grievance on July 16, 2010 alleging discrimination and harassment in employment. The grievance was denied by the employer and was referred to arbitration. The arbitration will be dealt with by the Public Service Grievance Board, which deals with grievances by non-unionized members of the Ontario Public Service. An arbitration date of December 15, 2011 has been scheduled.

3The respondents submit that the factual issues giving rise to the Application are the same as those that will be dealt with in the scheduled arbitration. The respondents submit that the arbitrator will have the full jurisdiction to deal with all of the issues, including any allegations that the applicant’s Code-protected rights have been infringed.

4In her response to the Request for Order During Proceedings, the applicant submits that the issues in the Application are different than those raised in the grievance. She says that the grievance relates to the period November 16, 2009 to August 2010 and that the Application relates to the period from November 2010 to April 15, 2011. She also argues that the Public Service Grievance Board arbitrator may not have jurisdiction to deal with her allegations that her Code-protected rights have been infringed.

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 in each case.

6In Calabria v. DTZ Barnicke, 2008 HRTO 411, the Tribunal stated:

Deferral of an application ensures that proceedings dealing with the same issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law. Some of the factors that may be relevant in deciding whether to defer consideration of an application before the Tribunal are the subject matter of the other proceeding, the nature of the other proceeding, the types of remedies available in the other proceeding, and whether it would be fair overall to the parties to defer, having regard to the status of each proceeding and the steps that have been taken to pursue them.

7The 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 this case, the applicant is not a member of a union and the grievance was not brought under a collective agreement. The applicant submits that as a result, the Public Service Grievance Board arbitrator may not have the same jurisdiction in regards to human rights matters as would an arbitrator in regard to a grievance brought under a collective agreement.

8Even if the applicant were correct about the jurisdiction of the arbitrator, in my view, it would still be appropriate for the Tribunal to defer further consideration of the Application until the matter before the Public Service Grievance Board has been resolved.

9While the time frame specified in the Application may be different than the time frame in relation to the grievance, there is nevertheless a significant overlap in terms of the facts and issues raised in the grievance and the facts and issues raised in the Application. The grievance proceeding is well advanced and a date before an arbitrator has been set.

10The Application will therefore be deferred pending the completion of the grievance process.

11The 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.