HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Kaskim Levy
Applicant
-and-
Her Majesty the Queen in Right of Ontario as represented by the Minister of Community Safety and Correctional Services, Anthony Valaitis, Scott Gray, Anthony Roth, Shawn McLeod and Anthony Veith
Respondents
INTERIM DECISION
Adjudicator: Geneviève Debané
Indexed as: Levy v. Ontario (Community Safety and Correctional Services)
1This Application was filed on March 22, 2011 pursuant to s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”) and alleges discrimination with respect to employment on the basis of race, colour and ancestry. The respondents have filed a response denying the allegations in the Application.
2This Interim Decision deals with the respondents’ Request for an Order During Proceedings to defer the Application (the “request to defer the Application”) which was filed on October 18, 2011. Though there is also a Request for an Order During Proceedings (the “request”) to remove all of the named individual respondents, (this Interim Decision does not deal with this latter request.
3The respondents submit that the terms and conditions of the applicant’s employment are governed by a collective agreement between the employer respondent and the Ontario Public Service Employees Union (the “Union”). The Union has filed four grievances with respect to the applicant’s employment including, Grievance 2009-0517-0111, Grievance 2009-0517-0140, Grievance 2009-0517-0112 and Grievance 2009-0517-0141. The respondents state that the Union has withdrawn grievances 2009-0517-0140 and 2009-01517-0141 because they are duplicates of the other two grievances. The respondents filed with the Tribunal confirmation that the Union has referred the two grievances to the Grievance Settlement Board (the “GSB”) for arbitration.
4On November 1, 2011 the applicant filed submissions opposing the respondents’ request to defer the Application. However, these submissions deal mostly with the merits of the Application and the request to remove the individual respondents. With respect to the request to defer the Application, the applicant takes the position that she has not been kept apprised of the status of the grievances and that they were filed over two years ago. It appears that the applicant is conceding that she has now been advised by her union that it is referring her grievances to arbitration. The applicant has filed confirmation that the Union withdrew grievances 2009-0517-0140 and 2009-01517-0141 on June 1, 2011. She has not filed confirmation that the other two outstanding grievances have been withdrawn.
5The Union filed no submissions with respect to the respondents’ request to defer the Application.
Decision
6The Tribunal may defer consideration of an application, on such terms as it may determine, on its own initiative or at the request of any party (Rule 14.1 of the Tribunal’s Rules of Procedure). The Tribunal must 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.
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 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).
8In this case, it is apparent that there is substantial overlap between the facts and allegations covered by the Application and those referred to in the grievances. It would not be constructive to have two proceedings consider concurrently the same facts as this may lead to contrary findings and decisions. Therefore, I find it is most fair, just and expeditious to defer this Application. The Application will be deferred pending the completion of the grievance and arbitration process.
9It is not necessary for the Tribunal to address the respondents’ request to remove the individual respondents at this time. In the event that this Application is reactivated by the Tribunal the respondents will have to renew their request to remove the individual respondents at that time and provide submissions in accordance with the Tribunal’s directions as set out in the Case Assessment Direction dated September 21, 2011.
10The Tribunal directs the parties’ attention to Rule 14 which sets out the procedure if a party wishes to proceed with an Application that has been deferred pending the conclusion of another proceeding.
11I am not seized.
Dated at Toronto, this 15th day of November 2011.
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Geneviève Debané
Vice-chair