Matthew Obasohan v. Her Majesty the Queen in Right of Ontario, as represented by the Ministry of Community and Youth Services, 2011 HRTO 1447

Human Rights Tribunal of Ontario

B E T W E E N:

Matthew Obasohan Applicant

-and-

Her Majesty the Queen in Right of Ontario, as represented by the Ministry of Community and Youth Services Respondent

INTERIM DECISION

Adjudicator: Sherry Liang Date: August 2, 2011 Citation: 2011 HRTO 1447 Indexed as: Obasohan v. Ontario (Community and Youth Services)

1This is an Application filed on April 7, 2011 under s. 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 in the Application that the facts of the Application are part of a union grievance proceeding that is still in progress, and has provided a copy of a grievance filed on his behalf by his union, Ontario Public Service Employees Union (the “union”). The Application refers to certain events during the course of the applicant’s employment with the respondent, but describes the “main basis” of the Application as the applicant’s suspension from employment in May 2010 and the events during and following the suspension. The applicant states that as a result of the manner in which he was treated, his union filed a grievance over the suspension and the manner in which the allegation against the applicant was handled.

3The respondent has requested that the Tribunal defer the Application pending the completion of the grievance proceeding. It states that the grievance has progressed through Stages 1 and 2 of the grievance procedure and is scheduled for mediation on August 12, 2011.

4The applicant opposes deferral, stating that while the subject of the grievance resulted from the applicant’s suspension, his Application concerns infringement of his rights beyond the suspension of May 2010. He also refers to the different remedies he seeks in the two proceedings.

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. 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, the applicant acknowledges that the grievances are based on the same facts raised in the Application. Although there are some events referred to which precede the applicant’s suspension (and which the respondent in any event submits are covered by a settlement and release), it is clear that the core subject matter of both the Application and the grievance is the applicant’s suspension in May 2010. In these circumstances, the Tribunal sees no reason to depart from its usual approach to defer consideration of the Application.

9The Application will therefore be deferred pending the completion of the grievance process. The Tribunal directs the parties’ attention to Rules 14.3 and 14.4 which outline the procedure by which the parties may request re-activation of the Application after the conclusion of the grievance process.

10The respondent has requested that part of the Application be dismissed on the basis that it is barred by a settlement and release and that in any event, raises untimely allegations of discrimination. Given the deferral of the Application, it is unnecessary to consider these issues at this stage.