HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Elina Feyginberg
Applicant
-and-
Her Majesty the Queen in Right of Ontario as represented by the Ministry of Community Safety and Correctional Services
Respondent
DECISION
Adjudicator: Alan G. Smith
Indexed as: Feyginberg v. Ontario (Community Safety and Correctional Services)
WRITTEN SUBMISSIONS
Her Majesty the Queen in Right of Ontario as represented by the Ministry of Community Safety and Correctional Services, Respondent
Donna Petri, Counsel
BACKGROUND
1This is an Application filed 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 because of sex and sexual harassment.
2This interim decision deals with a Notice of Intent to Defer issued by the Tribunal under Rule 14.2 of its Rules of Procedure on April 19, 2012, by which the Application would be deferred pending the outcome of the ongoing workplace grievance-arbitration process initiated by the applicant when she filed a series of grievances, the latest of which was dated January 17, 2012. The grievances were made pursuant to the Public Service of Ontario Act, 2006, S.O. 2006, c. 35, Sch. A.
3The Notice of Intent to Defer advised the parties that written submissions with regard to the deferral issue must be filed with the Tribunal by May 19, 2012.
4The respondent filed submissions in support of deferral on May 18, 2012. In its submissions the respondent notes that with the applicant’s grievances are, “based on substantially the same facts and issues as those raised in the Application, and have not been settled, decided or withdrawn”.
5No submissions regarding the Notice of Intent to Defer were received from the applicant.
ANALYSIS
6Deferral of an application ensures that proceedings dealing with the same issues do not run concurrently, raising the possibility of inconsistent decisions on facts or law.
7While deferral is not automatic, it is granted to avoid adjudicative duplication. The Tribunal has held that some of the factors that may be relevant in deciding whether to defer consideration of an application are the subject matter of the other proceeding, the nature of the other proceeding, the type 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 Christianson v. College of Physicians and Surgeons, 2009 HRTO 438, Groves v. Ontario (Community Safety and Correctional Services), 2010 HRTO 1779, and Gordon v. Leisureworld Caregiving Centre, 2011 HRTO 577.
8The Tribunal has generally deferred applications where there is an ongoing grievance under the Public Service of Ontario Act based on the same facts and human rights issues. See Lipke v. Ontario (Community Safety and Correctional Services), 2008 HRTO 285. 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 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.
9The Tribunal finds it appropriate to defer this Application pending the completion of the grievance process. The key issue at the heart of the grievances, the alleged harassment and differential treatment of the applicant in the workplace, is also the key issue covered by this Application. There may be issues raised by the Application that go beyond those that might be litigated before the Public Service Grievance Board (the “PSGB”). However, given the considerable factual overlap between the two proceedings and the potential for a PSGB hearing to determine some of the issues in this Application, the rational and orderly litigation of the various issues between this applicant and her employer favour deferral. See O’Brien v. Burlington (City), 2009 HRTO 1818, Chau v. Workright, 2011 HRTO 598, and Colella v. Toronto Catholic District School Board, 2011 HRTO 1289.
ORDER
10In these circumstances, the Tribunal finds that the most fair, just and expeditious approach is to defer consideration of this Application pending the conclusion of all the grievances filed by the applicant pursuant to the Public Service of Ontario Act. The Tribunal directs the parties’ attention to Rules 14.3 and 14.4 which outline the process by which a party may request, in accordance with Rule 19, the Tribunal to proceed with an application after the conclusion of another process.
11I am not seized of this matter.
Dated at Toronto, this 29th day of June, 2012.
“Signed by”
Alan G. Smith
Member