Human Rights Tribunal of Ontario
B E T W E E N:
Tanya Woods Applicant
-and-
Conseil Scolaire Viamonde Respondent
INTERIM DECISION
Adjudicator: Maureen Doyle Date: May 27, 2011 Citation: 2011 HRTO 976 Indexed as: Woods v. Conseil Scolaire Viamonde
1This is an Application filed on February 8, 2011 under 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 the issue of whether the Application should be deferred pending the completion of related grievance proceedings. The applicant alleges that the respondent has discriminated against her in employment on the basis of race, colour, sex and reprisal or threat of reprisal contrary to sections 5 and 8 of the Code.
2The applicant indicates in the Application that the facts of the Application are part of a union grievance proceeding that is still in progress, and encloses a copy of the grievance filed on her behalf by her union, Canadian Union of Public Employees (the “union”). The applicant grieved on October 14, 2010 that the respondent has violated the collective agreement between the respondent and the union in not providing a workplace free of harassment and discrimination.
3On March 21, 2011, the Tribunal issued a Notice of Intent to Defer, indicating that deferral may be appropriate pending the resolution of the grievance process. It invited submissions from the applicant, the respondent and the union.
4The applicant submits that the Application should not be deferred pending completion of the grievance process as she continues to work with an individual she alleges continues to harass and discriminate against her. She submits that any delay will permit the co-worker to continue the behaviour she has complained about and that delay will “unfairly assist the Respondent”, though she does not indicate how the respondent would benefit. She submits that she has now been subject to discipline, which has encouraged the co-worker about whose behaviour she has complained. She also submits that proceeding with the Application at this time “may clarify the issues and permit the grievance to be completed more expeditiously”.
5The respondent supports the deferral of the Application pending completion of the grievance process, and it submits that the matter of the grievance is the same as the matter of the Application; namely, the applicant’s allegation of harassment and discrimination in the workplace. Further, the respondent advises that a second related grievance was filed by the applicant in February 2011 wherein she alleged that discipline she received constituted further harassment and discrimination. The respondent submits that it is appropriate for the Tribunal to follow its usual practice of deferring the Application pending the completion of the grievance procedure.
6The union confirms that two grievances regarding harassment and discrimination have been filed and that they are related to the allegations made in the Application. The union supports deferral of the Application pending the completion of the grievance procedure in the two grievances.
7The Tribunal may defer consideration of an application, on such terms as it may determine, and on its own initiative (Rule 14.1 of the Tribunal’s Rules of Procedure). 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.
8The 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).
9The Supreme Court has 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.
10In 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 proceedings. I am satisfied that the concerns the applicant raises about delay do not justify a departure from the Tribunal’s normal approach. The matter is being addressed through the grievance process. The matter is still live and the grievance process has not concluded. If the applicant believes, on conclusion of the grievance process, that her human rights issues have not been adequately addressed, she may ask to have her Application brought back on before the Tribunal.
11The Application will therefore be deferred pending the completion of the grievance process.
12The 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. The union’s Request to Intervene will be dealt with by the Tribunal if the Application is brought back on.
13I am not seized.
Dated at Toronto, this 27th day of May, 2011.
”signed by”_____________
Maureen Doyle Vice-chair