Ng v. Ontario (Ministry of Government Services), 2011 HRTO 1487

Human Rights Tribunal of Ontario

B E T W E E N:

Flora Ng

Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Ministry of Government Services

Respondent

INTERIM DECISION

Adjudicator: Naomi Overend

Date: August 9, 2011

Citation: 2011 HRTO 1487

Indexed as: Ng v. Ontario (Ministry of Government Services)

1The applicant filed this Application on February 7, 2011 alleging discrimination in employment on the basis of multiple grounds contrary to Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”). In her Application, the applicant alludes to the fact that she is involved in arbitration.

2The respondent provided additional detail in its Response. It noted that some of the facts of the Application (including the termination of the applicant’s employment) are the subject matter of a grievance currently before the Grievance Settlement Board (GSB). It also submits that some of the particulars in the Application were the subject matter of previous grievances that went before the GSB.

3This Interim Decision addresses the request made by the respondent to defer the Application pending the completion of the grievance before the GSB. Although initially the applicant suggested that the Tribunal defer her Application pending the outcome of the arbitration, in her Reply she appears to oppose deferral.

DECISION AND ANALYSIS

4The Application particularizes events leading up to and including the termination of the applicant’s employment with the respondent in February 2010. In her lengthy narrative, she details events commencing as early as May 7, 2002. As noted above, the respondent asserts that some of these matters have been the subject matter of past grievances and some are presently before Arbitrator Loretta Mikus.

5The respondent advises that a grievance filed by Ontario Public Service Employees Union (OPSEU) concerning the applicant’s termination, and three past grievances concerning suspensions, were jointly heard before Arbitrator Mikus over the course of six days, concluding on January 10, 2011 (the respondents mistakenly advise it was January 10, 2010). The decision of Arbitrator Mikus is pending.

6The Tribunal will generally defer an application where there is an ongoing grievance based on the same facts and issues. However, the Tribunal must also consider, in light of the particular circumstances of each case, whether deferral is the most fair, just and expeditious way of proceeding with the application.

7In explaining this approach, the Tribunal has referred to the fact that the Supreme Court of Canada has affirmed that grievance arbitrators, including the GSB, 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.

8There appears to be a complete overlap between the issues and allegations raised in the grievance and some of the matters raised in this instant Application. Moreover, the GSB decision is pending. When it is released, the respondent will be in a position to determine whether it wishes to raise a s. 45.1 argument concerning the matters addressed in the arbitration.

9The applicant now appears to be opposed to deferral on the basis that she feels her human rights issues were not looked at during the GSB hearing. She only makes reference to the first of the six dates, but does not appear to dispute the respondent’s assertion that there were additional dates.

10Once the decision of Arbitrator Mikus is released, it will be possible to determine what aspects of the Application were addressed in the GSB grievance process. It would not be fair, just or expeditious to proceed with this Application, thereby requiring the respondent to potentially participate in two proceedings dealing with identical allegations.

11In light of the above, I am satisfied that deferral is appropriate. If the applicant believes, on conclusion of the grievance process before the GSB, that her human rights issues have not been adequately addressed, she may ask to have her Application brought back on before the Tribunal.

12The Application will therefore be deferred pending the conclusion of the grievance process before the GSB. The 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 GSB hearing process.

13The respondent also made a request to have portions of this matter dismissed under s. 45.1 and for delay; however, at this point it is not necessary to decide these issues. These issues can be addressed if the Application is brought back on.

14I am not seized of this matter.