Muldoon v. Ontario (Community Safety and Correctional Services), 2011 HRTO 735

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Daniel Muldoon

Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Ministry of Community Safety and Correctional Services

Respondent

INTERIM DECISION

Adjudicator: Naomi Overend

Date: April 15, 2011

Citation: 2011 HRTO 735

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

WRITTEN SUBMISSIONS

Daniel Muldoon, Applicant ) Self-represented

Her Majesty the Queen in Right ) of Ontario as represented by the ) Michelle Kushnir, Counsel Ministry of Community Safety and ) Correctional Services, Respondent )

1The applicant filed this Application on September 3, 2010, alleging discrimination in employment on the basis of disability and reprisal, contrary to the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant advises in his Application that “some of the matters contained in my complaint are before the Public Service Grievance Board” (“PSGB”). In response to a request from the Tribunal, he provided a copy of a PSGB application filed on September 2, 2010.

2The Tribunal sent a Notice of Intent to Defer to the parties on November 19, 2010, in which it advised them that it may be appropriate to defer pending the resolution of this PSGB proceeding and asked the parties to file submissions. Both the applicant and respondent filed submissions. This Interim Decision addresses the deferral issue.

DECISION AND ANALYSIS

3The applicant continues to be employed by the respondent Ministry, but is in an ongoing dispute with it concerning payment to him for periods when he was unable to work due to illness and injury. His Application also contains allegations of comments made to him in a May 12, 2006 meeting and an alleged breach of privacy and failure to follow an investigation protocol, which he states he learned about on December 1, 2008.

4In its submissions, the respondent provided two other PSGB applications filed by the applicant, dated December 11, 2008 and September 1, 2010 respectively. The wording of the appendices to these two applications is word-for-word the same as Appendix A-E of the Application before this Tribunal. Collectively, all issues raised in his Application are covered by the applicant’s three PSGB applications.

5It would appear that on March 30, 2011, the PSGB heard submissions on a motion on the applicant’s 2008 application and motions concerning scheduling on the two 2010 applications before it. On March 31, 2011, the applicant advised that preliminary hearing dates for the 2010 applications were scheduled for October 5, 2011, and that the parties are awaiting a number of rulings from the PSGB on undisclosed issues.

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 PSGB, 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. See Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42.

8In his written submissions, the applicant states that it would be inappropriate to defer his Application as the “employer has been delaying the hearing of my outstanding grievances … by putting forth multiple motions to dismiss.” It is his view that these motions are “frivolous.” He fails to explain why the Tribunal’s process would be less amenable to such motions or why he believes that matters before this Tribunal would be heard in a more timely fashion than his matters before the PSGB.

9The applicant also states his belief that there is an unspecified provision in the Code which means that “complaints” based on the ground of disability “can and often heard simultaneously by the HRTO and the GSB/PSGB.” In fact, there is no provision that gives such Applications special status. The criteria as set out in the case law applies regardless of the particular ground cited.

10There is complete overlap between the issues and allegations raised in the PSGB applications and this instant Application. Moreover, the PSGB has commenced the proceedings and has heard, at least, preliminary motions on these applications. It would not be fair, just or expeditious to proceed with this Application, thereby requiring the respondent to simultaneously 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 PSGB process, that his human rights issues have not been adequately addressed, he may ask to have his Application brought back on before the Tribunal.

12The Application will therefore be deferred pending the conclusion of the hearing into PSGB applications identified as P-2008-2913, P-2010-1500 and P-2010-1501. 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 PSGB hearing process.

13I am not seized of this matter.