HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Tricia Lee Beirnes
Applicant
-and-
Family & Children’s Services of Waterloo Region,
Karen Walker, Lynn Taylor and Henny Laurin
Respondents
INTERIM DECISION
Adjudicator: Ena Chadha
Indexed as: Beirnes v. Family & Children’s Services of Waterloo Region
WRITTEN SUBMISSIONS
Family & Children’s Services of Waterloo )
Region, Karen Walker, Lynn Taylor and ) Paul A. Young, Counsel
Henny Laurin, Respondents )
1The applicant filed this Application on March 28, 2012, 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 family status and reprisal.
2The applicant alleges that she has been denied vacation and comp time. The Application notes that the applicant has a number of workplace grievances with respect to these types of concerns in progress. The applicant provided copies of four grievances dated from January to February 2012.
3On June 30, 2012, the Tribunal issued a Notice of Intent to Defer indicating that the Tribunal may defer consideration of the Application the pending the resolution of the applicant’s grievances. The Tribunal invited the parties and the applicant’s union, as an affected party, to file submissions with respect to the issue of deferral.
4The respondents support deferral pending the resolution of the applicant’s grievances. The respondents indicate that the grievances are scheduled to be heard by Arbitrator Luborsky commencing on October 9, 2012.
5Neither the applicant, nor her union, filed submissions.
Decision
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.
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.
9Having reviewed the applicant’s documentation, it appears that subject matter of the Application is the very same as the outstanding grievances. The grievances were filed prior to the Application and are scheduled for arbitration in October 2012. There is real risk of inconsistent findings of fact and duplication of resources if the current Application was to proceed concurrently with the grievance arbitration. As such, the most fair, just and expeditious approach is to defer consideration of this Application pending the conclusion of the applicant’s grievances and the grievance proceedings.
10I conclude that there is significant overlap in the subject matter of the Application and the outstanding grievances and a real concern with respect to parallel proceedings. Accordingly, it appropriate to defer the Application until the conclusion of the grievance process.
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 13th day of August, 2012.
“Signed by”
Ena Chadha
Vice-chair