Human Rights Tribunal of Ontario
Between:
Rebecca Cripps Applicant
-and-
Her Majesty the Queen in Right of Ontario as represented by the Ministry of the Environment Respondent
Interim Decision
Adjudicator: Ena Chadha Date: July 9, 2012 Citation: 2012 HRTO 1353 Indexed as: Cripps v. Ontario (Environment)
Written Submissions
Her Majesty the Queen in Right of Ontario as represented by the Ministry of the Environment, Respondent Felix Lau, Counsel
1This Application was filed on November 4, 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 sex and record of offences.
2The applicant alleges that she was subjected to gender-based discrimination and harassment as a result of certain interactions during a meeting on November 2, 2011. The applicant provided a copy of a grievance she filed on November 3, 2011, alleging “sexual harassment during employer and employee meeting of November 2, 2011”.
3On April 19, 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 May 17, 2012, the respondent filed submissions supporting deferral. The respondent submits that the applicant’s grievance and the Application stem from the same alleged conduct. The respondent submits that the applicant can seek the same remedies sought through the Application at arbitration before the Grievance Settlement Board (“GSB”).
5The applicant did not file submissions.
Deferral
6The 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.
7Some 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.
8The 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.
9I see no reason to depart from the Tribunal’s general approach and find that deferral is warranted in the present circumstances. The applicant’s grievance was commenced prior to this Application and raises the same facts and issues as alleged in the Application. Accordingly, 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.
10This Application is deferred pending the conclusion of the applicant’s grievance and the grievance proceedings.
11Where 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).
12I am not seized of this matter.
Dated at Toronto, this 9th day of July, 2012.
“Signed by”
_________________________________
Ena Chadha Vice-chair