HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Hoda Morsi
Applicant
-and-
Her Majesty the Queen in Right of Ontario as represented by the Minister of Finance, John Lucas, Barry Chan and Rick Steinbock
Respondents
-and-
Ontario Public Service Employees Union
Intervenor
interim DECISION
Adjudicator: Mark Hart
Indexed as: Morsi v. Ontario (Finance)
1This is an Application filed on June 3, 2009 under section 53(5) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”). The applicant alleges that she was subject to discrimination in employment on the basis of age, sex creed, disability, ethnic origin and place of origin. She also alleges reprisal.
2By Interim Decision dated January 6, 2010 (2010 HRTO 21), this Application was deferred pending an ongoing grievance proceeding.
3By letter dated February 9, 2011, the Tribunal contacted the parties regarding the status of the grievance proceeding and an estimated completion date.
4In response, by letter from counsel for the respondents dated February 14, 2011, the Tribunal was advised that the applicant’s grievances were still being litigated at the Grievance Settlement Board (“GSB”) and that it was expected that the arbitration would be completed by mid-2012. The applicant’s new counsel raises an issue about not having received this letter. This letter was copied to the applicant’s former counsel and was sent prior to the respondents or the Tribunal receiving any notice that her new counsel had been retained.
5On February 28, 2011, the Tribunal received correspondence from new counsel for the applicant, requesting that the Tribunal re-activate the Application, on the basis that the applicant had lost all trust in the union and that the union had failed to advance her human rights related grievances in a manner consistent with the objective of this Tribunal’s jurisprudence regarding deferral. The applicant alleges that the respondent and the union have not made any effort to expedite the grievance process, and that the grievance process had “bogged down” with no real effort by the respondent and the union to move forward.
6In response, by letter dated February 28, 2011, the Tribunal invited submissions from the respondent and the union in response to the applicant’s request, and afforded the applicant the right to file submissions in reply.
7On March 10, 2011, the respondent advised that 20 grievances filed by the applicant covering the period from December 18, 2006 to July 2, 2008 had been consolidated before Vice Chair Devins of the GSB. These grievances largely encompass the time period covered by the allegations underlying the Application, which extend from late November 2006 to July 2007. I also note that in the complaint filed with the Commission, the applicant indicated that she had filed grievances on the allegations raised in her complaint, although she was not happy with how they were proceeding through the grievance process.
8The arbitration process before Vice Chair Devins of the GSB commenced with preliminary issues including particulars and disclosure on at least three dates in August 2008, and litigation on the merits of the grievances commenced in October 2008. The union’s case was presented over the course of 28 days at the hearing, with 12 witnesses, including the applicant, called to testify. The applicant’s testimony alone extended over 23 days, with 12 days in examination-in-chief and 11 days under cross-examination. To the date of the respondent’s submissions, one employer witness had been called and had provided evidence in chief. Cross-examination was deferred pending the resolution of some disclosure issues.
9As of March 10, 2011, further hearing dates before the GSB had been set for April 4, 11, 28 and May 9, 24 and June 2, 2011. The respondent’s estimated completion date for the arbitration hearing of mid-2012 is based on the length of the union’s case and how long it may take to hear the respondent’s evidence in response.
10Reply submissions were filed by the applicant on March 16, 2011, which generally are critical of the respondent’s record in dealing with human rights issues and in managing the grievance process. It is stated that the applicant is sceptical as to whether all of her grievances have been referred to arbitration. Whether or not that is the case, that is not the issue before me. The issue before me is whether there is any proper basis to reverse this Tribunal’s deferral order in relation to the specific allegations raised in the Application before this Tribunal, which as previously stated extend from late November 2006 to July 2007. Grievances covering virtually all of this period of time are currently in the midst of a lengthy arbitration hearing at the GSB, and the applicant herself acknowledged in her complaint that the allegations she was raising had already been raised in grievances she had filed. The applicant has not taken the position that her Application raises different allegations than are raised in the GSB proceeding.
11The GSB already has heard extensive evidence from the applicant and from witnesses called by the union in support of her allegations in the context of the GSB proceeding. The GSB proceeding is ongoing, with hearing dates held or scheduled in April, May and June of this year. With the GSB having already heard some (by now) 30 days of evidence covering what appear to be the very same issues and allegations before this Tribunal, it is hard to fathom why it would make sense for this Tribunal to re-activate the Application at this time to commence hearing the very same evidence and witnesses who already have been heard by the GSB. To engage in such a process while the GSB arbitration is outstanding would be duplicative, could potentially lead to inconsistent factual findings, and would be wasteful of the resources of the parties, the GSB and this Tribunal.
12The applicant raises the fact that she is scheduled to be transferred from the provincial government to the federal government sometime in the summer of 2012. The transfer agreement between the federal and provincial governments provides that, if the provincial government has not resolved a grievance by the time of the transfer, the federal government will cooperate in releasing witnesses and/or complainants from work on a leave-without-pay basis to participate in the dispute process. The applicant apparently is now being paid when she attends the GSB hearing. In my view, this concern is entirely speculative. The respondent’s estimate is that the GSB hearing will be concluded by mid-2012, which is when the applicant says she is scheduled to be transferred. This estimated completion date has not been contested by the applicant. If the GSB hearing is completed by that time, then no issue regarding the impact of the transfer agreement would apply. In any event, any loss of ability to be paid for attending a grievance hearing is not a reason to reverse this Tribunal’s deferral order.
13The applicant also raises a concern that, after she has been transferred, she will no longer be an OPSEU member, and she accordingly believes that OPSEU will have little interest in aggressively representing her interests. Once again, in my view, this is a speculative concern, as the GSB hearing may well be completed prior to the transfer.
14The union also filed submissions dated March 16, 2011, which generally confirm the information provided by the respondent regarding the status of the grievance arbitration hearing before the GSB. It appears that the union’s submissions had not been received by applicant’s counsel at the time the reply submissions were filed, as applicant’s counsel makes reference to a “failure to respond” by the union. No further reply submissions were received from the applicant following the filing of the union’s submissions. In any event, it is not necessary for me to rely on the union’s submissions in order to deal with the applicant’s request.
15Accordingly, the Tribunal will continue to defer the Application. As previously stated, where a party wishes to proceed with an application which has been deferred, the party must contact the Registrar-Transition no later than 60 days after the conclusion of the other proceeding.
16I am not seized.
Dated at Toronto, this 16th day of May, 2011.
”signed by”__________
Mark Hart
Vice-chair