HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Viktoria Burdman
Applicant
-and-
Her Majesty the Queen in Right of Ontario as represented by the Ministry of Transportation
Respondent
INTERIM DECISION
Adjudicator: Naomi Overend
Indexed as: Burdman v. Ontario (Ministry of Transportation)
1The applicant filed this Application on August 26, 2010 alleging discrimination in employment on the basis of disability, contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”). The applicant advises in her Application that the facts of her Application are the subject matter of grievance before the Grievance Settlement Board (“GSB”).
2This Interim Decision addresses the request made by the respondent in its Response to defer the Application pending the completion of the grievance before the GSB. The Respondent also made a request to have the matter dismissed for delay and the Association of Management, Administrative and Professional Crown Employees of Ontario (“AMAPCEO”) filed a request to intervene, but at this point it is not necessary to decide these issues.
DECISION AND ANALYSIS
3The Application particularizes events leading up to and including the termination of the applicant’s employment with the respondent in June 2006. These same incidents are the subject of a grievance filed by AMAPCEO on behalf of the applicant. The respondent advises that the matter has been scheduled for arbitration. Initially it was scheduled to proceed to hearing on November 24, 2010, but the applicant was unable to attend the mediation in person that day and it was re-scheduled to April 29, 2011.
4The applicant filed a one-line objection to the deferral, stating only that the matter was only going to the mediation stage on April 29, 2011. She does not contradict the respondent’s assertion that the allegations in the grievance and the Application are the same.
5The 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.
6In explaining this approach, the Tribunal has referred to the fact that the Supreme Court of Canada has affirmed that grievance arbitrators, including the GSB, 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.
7There is complete overlap between the issues and allegations raised in the grievance and this instant Application. Moreover, the GSB has commenced the proceedings and has even scheduled hearing dates. 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.
8In light of the above, I am satisfied that deferral is appropriate. If the applicant believes, on conclusion of the grievance process before the GSB, that her human rights issues have not been adequately addressed, she may ask to have her Application brought back on before the Tribunal.
9The Application will therefore be deferred pending the conclusion of the hearing into the grievance by the GSB. 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 GSB hearing process.
10I am not seized of this matter.
Dated at Toronto, this 9th day of May, 2011.
”signed by”______________
Naomi Overend
Vice-chair