Williams v. Ontario (Community Safety and Correctional Services), 2012 HRTO 1749

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Simone Williams Applicant

-and-

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

-and-

Ontario Public Service Employees Union Intervenor

INTERIM DECISION

Adjudicator: Ena Chadha Date: September 17, 2012 Citation: 2012 HRTO 1749 Indexed as: Williams 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 Cathy Phan, Counsel

Ontario Public Services Employees Union, Intervenor David Wright, Counsel

1This Application was filed April 3, 2012, 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 race and colour. The applicant alleges that the respondent has failed to protect her from a poisoned work environment.

2In its Response filed June 24, 2012, the respondent requested that the Application be dismissed on the basis that, through a mediation/arbitration proceeding before the Grievance Settlement Board (“GSB”), the parties entered into a binding settlement dated September 8, 2009, which included a comprehensive release. The respondent also sought dismissal on the basis that the breaches of the Code which are alleged to have occurred after September 2009 are, pursuant to the 2009 GSB settlement, still within the jurisdiction of the GSB and Vice-Chair Chris Albertyn who remained seized of the issues.

3On June 20, 2012, the applicant’s bargaining agent, Ontario Public Service Employees Union, (“OPSEU”) applied for intervenor status. In the Request to intervene, OPSEU noted that applicant had an individual grievance regarding the workplace circumstances and that this individual grievance was settled on September 8, 2009. OPSEU stated that it was agreed by all parties to the settlement that GSB Vice-Chair Chris Albertyn remained seized with respect to “any issues” arising from the alleged workplace circumstances.

4By way of Interim Decision 2012 HRTO 1413, the Tribunal granted OPSEU intervenor status and directed that a preliminary hearing be scheduled to hear submissions with respect to the respondent’s requests to dismiss and section 45.1 of the Code.

5On July 24, 2012, the respondent filed a Request for an Order During Proceedings (“Request”) asking that it be permitted to revise its position with respect to early dismissal and now seeks the Tribunal consider deferral of the Application. The respondent asserts that since, pursuant to the September 8, 2009 minutes of settlement, Vice-Chair Chris Albertyn is seized of “any issues of interpretation and implementation” that the GSB has jurisdiction over the issues raised in the Application.

6On August 2, 2012, OPSEU filed submissions supporting the respondent’s request to defer. OPSEU submits that the matters alleged in the Application should be brought back before Vice-Chair Albertyn. OPSEU argues that all matters raised by the applicant in the Application constitute “issues arising from” the alleged workplace circumstances as contemplated by the September 8, 2009 minutes of settlement and, therefore, the Application should be deferred pending proceedings before the GSB.

7The applicant has made no submissions with regards to the issue of deferral.

Deferral

8The 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.

9Some 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.

10There are a number of compelling reasons why applications should be deferred when parties are engaged in other legal proceedings that raise related issues. As noted in various Tribunal decisions, it may be unfair for parties to be required to simultaneously present their cases in multiple proceedings, 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. See Klein v. Toronto Zionist Council, 2008 HRTO 189; Tekes v. Markham (Town), 2009 HRTO 1665; and Mahjour v. Joe Singer Shoes, 2010 HRTO 1053.

11The Tribunal will generally defer an application where the parties are already engaged in legal proceedings raising similar facts and issues, particularly where the other decision-maker has the authority to make determinations with respect to the facts or issues raised in the application. See for example, Aganeh Estate v. Mental Health Care Penetanguishene, 2011 HRTO 2280. 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.”

12In deferring an application on the basis of an on-going grievance under a collective agreement, 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.

13Based on the submissions, I find that there are sufficient grounds to justify deferral of this Application.

14There is clearly an overlap between the alleged workplace circumstances as described in the Application and the applicant’s previous grievance and the settlement. The settlement includes a provision that Vice-Chair Albertyn continues to be seized of the matters arising out of the grievance. Two parties to the grievance and settlement, namely the respondent employer and OPSEU, both submit that the issues brought forth in the Application should go before Vice-Chair Albertyn in accordance with the settlement. As such, I conclude that a real concern with respect to parallel proceedings given that Vice-Chair Albertyn appears to be seized of the some of the matters as alleged by the Application. In these circumstances, I find that it is appropriate to defer the Application pending the completion of proceedings before the GSB.

15Where 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).

16I am not seized of this matter.