Richards v. Ontario (Community Safety and Correctional Services), 2011 HRTO 1994

Human Rights Tribunal of Ontario

B E T W E E N:

Barbara Richards

Applicant

-and-

Her Majesty the Queen in Right of Ontario as Represented by the Minister of Community Safety and Correctional Services

Respondent

INTERIM DECISION

Adjudicator: Douglas Sanderson

Date: November 3, 2011

Citation: 2011 HRTO 1994

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

1This is an Application filed on September 1, 2011, 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 Application alleges discrimination in employment because of race, sexual orientation and family status. In the Application, the applicant alleges the respondent improperly denied her sick pay for an absence she alleges was caused by workplace harassment. The applicant stated in the Application that she filed a grievance with her union regarding this issue. The grievance proceeding remains in progress; therefore, the Tribunal issued a Notice of Intent to Defer the Application, pending the outcome of her grievance. In a letter dated October 18, 2011, responding to the Notice of Intent to Defer, the applicant referred to a letter from the respondent denying her grievance and stated that the arbitration process has ended. There is, however, no indication that the applicant’s union withdrew the grievance or that it has been decided by arbitration.

3The 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.

4The 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).

5The 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.

6In this case, it is apparent that there is substantial overlap between the facts and human rights issues covered by the Application and those referred to in the grievance. It does not appear that the grievance process has concluded and it is not yet apparent whether or not the applicant’s grievance will be referred to arbitration. If the applicant believes, on conclusion of the process, that her human rights issues have not been adequately addressed, she may ask to have her Application brought back on before the Tribunal.

7The Application will therefore be deferred pending the completion of the grievance process.

8The 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.

9I am not seized.