Tammy Carson v. Curtis Desroches, 2011 HRTO 2102

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Tammy Carson

Applicant

-and-

Curtis Desroches

Respondent

interim DECISION

Adjudicator: Sherry Liang

Date: November 21, 2011

Citation: 2011 HRTO 2102

Indexed as: Carson v. Desroches

1The applicant filed an Application on June 15, 2011 under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment on the basis of race, ancestry, and ethnic origin, as well as reprisal.

2The applicant is a corrections officer employed by the Ministry of Community Safety and Correctional Services. The Application alleges that the respondent, a manager, made an offensive joke during a training session that was related to her background.

3The applicant is represented in the workplace by the Ontario Public Service Employees Union and has filed a grievance on April 11, 2011 about the same incident. Upon receipt of the Application the respondent filed a Request for an Order During Proceedings requesting that this matter be deferred pending the completion of the grievance process. He states that the grievance has been referred to arbitration before the Grievance Settlement Board, which has the authority and capacity to address the allegations of Code violations and to provide an appropriate remedy if those allegations are substantiated. He also asks that the requirement to file a Response be held in abeyance in the circumstances.

4The applicant did not file a Response to the Request.

5The Tribunal may defer consideration of an application, on such terms as it may determine, and on its own initiative or on the request of a party. 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, 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. There is no reason to depart from the Tribunal’s usual approach in such circumstances. The Application will therefore be deferred pending the completion of the grievance process.

9In the circumstances, I also find it appropriate to order that the requirement to file a Response be held in abeyance pending re-activation of the Application.

10The 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.

11I am not seized of this matter.