Hart-Day v. Ontario (Community Safety and Correctional Services), 2011 HRTO 374

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Nancy Hart-Day 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: Alan G. Smith Date: February 22, 2011 Citation: 2011 HRTO 374 Indexed as: Hart-Day v. Ontario (Community Safety and Correctional Services)

WRITTEN SUBMISSIONS

Nancy Hart-Day, Applicant ) Self-represented

Ministry of Community Safety and ) Correctional Services, ) Marnie Bacher, Counsel Respondent )

INTRODUCTION

1This is an Application filed August 27, 2010, pursuant to 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 a Notice of Intent to Defer issued by the Tribunal by which the Application would be deferred pending the outcome of the ongoing workplace grievance-arbitration process undertaken by the parties. The respondent does not contest the deferral.

2The applicant opposes deferral because she is concerned the remedies available through the grievance-arbitration process are inferior to remedies available from the Tribunal. The applicant is also concerned that the arbitration hearing scheduled to begin February 25, 2011, may be delayed until April or May 2011.

3Deferral of an application ensures that proceedings dealing with the same issues do not run concurrently, raising the possibility of inconsistent decisions on facts or law.

4While deferral is not automatic, it is granted to avoid adjudicative duplication. The Tribunal has held that some of the factors that may be relevant in deciding whether to defer consideration of an application are the subject matter of the other proceeding, the nature of the other proceeding, the type of remedies available in the other proceeding, and whether it would be fair overall to the parties to defer, having regard to the status of each proceeding and the steps that have been taken to pursue them. See Christianson v. College of Physicians and Surgeons, 2009 HRTO 438 at para. 10; Groves v. Ontario (Community Safety and Correctional Services), 2010 HRTO 1779,).

DECISION

5The Tribunal has generally deferred applications where there is an ongoing grievance under a collective agreement based on the same facts and human rights issues: Blackman v. Ontario (Minister of Community Safety and Correctional Services), 2009 HRTO 970 at para. 5. 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 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. In my view this answers the applicant’s primary reason for objecting to deferral.

6A review of the grievances filed by the applicant reveals they are virtually identical to the subject matter of the Application.

7While the applicant may be frustrated with the length of time the grievance/arbitration process has taken, this is not a sufficient reason to proceed with the Application in all the circumstances: Law v. Organizational Solution, 2010 HRTO 1158.

ORDER

8In these circumstances, the Tribunal finds that the most fair, just and expeditious approach is to defer consideration of this Application pending the conclusion of the grievance arbitration process. The Tribunal directs the parties’ attention to Rules 14.3 and 14.4 which outline the process by which a party may request, in accordance to Rule 19, the Tribunal to proceed with an application after the conclusion of another process.

9I am not seized of this matter.