Esther Cox v. Ontario (Health and Long-Term Care), 2012 HRTO 1129

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Esther Cox

Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Minister of Health and Long-Term Care and Catia Creatura-Amelio

Respondents

INTERIM DECISION

Adjudicator: Ena Chadha Date: June 8, 2012 Citation: 2012 HRTO 1129 Indexed as: Cox v. Ontario (Health and Long-Term Care)

WRITTEN SUBMISSIONS

Her Majesty the Queen in Right of Ontario as represented by the Minister of Health and Long-Term Care and Catia Creatura-Amelio, Respondents

Jennifer Richards, Counsel

AMAPCEO, Affected Party

Elisa Mesiti, Representative

1This Application was filed on December 2, 2011 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment on the basis of disability and age.

2The applicant alleges that she was harassed, subjected to unfair treatment, denied workplace accommodation and her safety concerns were ignored. In response to question 14 of Form 1 of the Application, the applicant noted that a grievance is in progress with respect to the facts alleged in the Application. The applicant provided a copy of a termination dispute form (“grievance”) dated July 19, 2011.

3On April 17, 2012, the Tribunal issued a Notice of Intent to Defer (“Notice”). The Notice indicated that, pursuant to Rule 14 of the Tribunal’s Rules of Procedure, the Tribunal may defer an Application pending the resolution of another legal proceeding. The Tribunal invited the parties, and the applicant’s union, as an affected party, to file written submissions within 30 days of the date of the Notice as to why consideration of the Application should or should not be deferred.

4On April 26, 2012, the applicant’s union wrote to the Tribunal and advised that it is not taking any position with respect to the Application at this time; however, it reserves the right to file for intervenor status and to take a position in the event that the matter is not resolved through the collective agreement dispute resolution process.

5On May 7, 2012, the respondents filed submissions supporting deferral. The respondents submit that the Tribunal should not duplicate the dispute resolution proceedings that have already been commenced and may proceed to arbitration. The respondents indicate that the applicant’s grievance was referred to Stage 2 of the dispute resolution process. The respondents note that if the grievance is not resolved at this stage, then the matter may next be submitted to arbitration before the Grievance Settlement Board (“GSB”).

6The applicant did not file submissions.

Deferral

7The Tribunal may defer consideration of an application, on such terms as it may determine, on its own initiative or at the request of any party (Rule 14.1). Deferral of an application ensures that proceedings dealing with the same issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law.

8Some factors that have been identified as relevant in deciding whether to defer consideration of an application before the Tribunal are the subject matter of the other proceeding, the nature of the other proceeding, the types 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 Baghdasserians v. 674469 Ontario, 2008 HRTO 404.

9The Tribunal generally defers applications where the parties are already engaged in a concurrent legal proceeding, particularly when the other proceeding is on-going grievance under a collective agreement based on the same facts and issues as raised in the Application. In so doing, the Tribunal has relied on Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42, wherein the Supreme Court of Canada confirmed 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.

10I see no reason to depart from the Tribunal’s general approach and find that deferral is warranted in the present circumstances. It appears that the respondents and the union agree that the Application should be deferred to allow the grievance to progress through its normal course. The applicant’s grievance was commenced prior to this Application and appears to be covering many of the same facts and issues as alleged in the Application.

11As highlighted in various Tribunal decisions, there are compelling reasons why it may be unfair for parties to be required to simultaneously present their cases in multiple fora, particularly when the matters overlap; when the same facts or issues are in dispute there is a potential for inconsistent findings, and it is generally preferable for one proceeding to be completed before the other starts. Further, as recently stated in McFarlane v. Farraway, 2012 HRTO 657, “[w]here 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.”

12As such, I determine that the most fair, just and expeditious approach is to defer consideration of this Application pending the conclusion of the applicant’s grievance and the grievance proceedings.

13Accordingly, I conclude that there is significant duplication in the subject matter of the Application and the outstanding grievance and, as such, it is appropriate to defer the Application until the conclusion of the grievance process.

14Where a party wishes to proceed with an application which has been deferred, the party must make a Request for an Order During Proceedings in accordance with Rule 19 within 60 days after the conclusion of the other proceeding (Rules 14.3 and 14.4).

15I am not seized of this matter.