HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Catherine Goodchild Applicant

-and-

Her Majesty the Queen in right of Ontario as represented by the Minister of Community Safety and Correctional Services Respondent

INTERIM DECISION

Adjudicator: Ena Chadha Date: July 17, 2012 Citation: 2012 HRTO 1399 Indexed as: Goodchild v. Ontario (Community Safety and Correctional Services)

WRITTEN SUBMISSIONS

Her Majesty the Queen in the right of Ontario as represented by the Minister of Community Safety and Correctional Services, Respondent: Christina Donszelmann, Counsel

1The applicant filed this Application on September 27, 2011, under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment on the basis of race, colour, ancestry, place of origin and ethnic origin. The applicant alleges that the organizational respondent has failed to address her concerns of mistreatment and harassment by a manager because of her race and colour. The applicant provided a copy of a workplace grievance dated September 26, 2011 alleging that she has been subjected to racist comments.

2On May 10, 2012, the Tribunal issued a Notice of Intent to Defer indicating that the Tribunal may defer consideration of the Application pending the resolution of another legal proceeding dealing with the subject matter of the Application. The Tribunal invited the parties and the affected party, the applicant’s union, to file submissions with respect to the issue of deferral.

3On May 31, 2012, the respondent wrote to the Tribunal advising that it supports deferral of the Application because the applicant’s grievance which is currently underway raises exactly the same issues as raised in the Application.

Decision

4The 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.

5The Tribunal generally defers applications where the parties are already engaged in a concurrent legal proceeding, particularly when the other proceeding is an on-going grievance under a collective agreement based on the same facts and issues as raised in the Application.

6Some 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.

7The Tribunal generally defers applications where the parties are already engaged in a concurrent legal proceeding, particularly when the other proceeding is an 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.

8Having reviewed the applicant’s documentation, I conclude that there is significant overlap in the subject matter of the Application and the grievance. The allegations in the Application are the very same as the outstanding grievance. The grievance was launched prior to the Application. There is real risk of inconsistent findings of fact and duplication of resources if the current Application was to proceed concurrently with the grievance. As such, the most fair, just and expeditious approach is to defer consideration of this Application pending the conclusion of the applicant’s grievance.

Order

9The Application is deferred until the conclusion of the grievance process.

10Where 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).

11I am not seized of this matter.

Dated at Toronto, this 17th day of July, 2012.

Signed by

Ena Chadha Vice-chair