Bronson Sardinha v. Her Majesty the Queen in Right of Ontario as represented by the Minister of Community Safety and Correctional Services – Toronto West Detention Centre, 2012 HRTO 1751

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Bronson Sardinha

Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Minister of Community Safety and Correctional Services – Toronto West Detention Centre

Respondent

INTERIM DECISION

Adjudicator: Douglas Sanderson
Date: September 17, 2012
Citation: 2012 HRTO 1751
Indexed as: Sardinha v. Ontario (Community Safety and Correctional Services)

WRITTEN SUBMISSIONS

Bronson Sardinha, Applicant
Self-represented

Her Majesty the Queen in Right of Ontario as represented by the Minister of Community Safety and Correctional Services – Toronto West Detention Centre, Respondent
Indira Sawh, Counsel

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 disability, sex, gender identity, sexual orientation, record of offences and reprisal. This Interim Decision deals with the issue of whether the Application should be deferred pending the completion of a related grievance proceeding.

2The applicant indicates in the Application that the facts of the Application are part of a union grievance proceeding that is still in progress.

3The respondent made a Request to Defer in its Response and submitted that the applicant is currently involved in several grievances filed under the collective agreement between the respondent and the trade union representing the applicant, pursuant to the Crown Employees Collective Bargaining Act, 1993, S.O. 1993, c.38 (the “CECBA”). The applicant submitted that these grievances appear to be based on the same facts and issues as the Application. The respondent submitted that the grievances have not been settled, decided or withdrawn. The respondent submitted that deferral of the Application until the grievances have been resolved is appropriate in order to avoid concurrent proceedings and potentially inconsistent decisions. The respondent noted that Grievance Settlement Board arbitrators, who arbitrate grievances under the CECBA, are empowered to address and remedy Code violations.

4The applicant did not file a Reply addressing the Request to Defer, as directed by the Tribunal.

5The Tribunal may defer consideration of an application, on such terms as it may determine, and on its own initiative (Rule 14.1). The Tribunal has stated that deferral is not automatically invoked simply because the parties are involved in other legal proceedings. It is a discretionary measure that the Tribunal exercises on the basis of the circumstances in each case. Absent good reason, applicants and respondents before the Tribunal are entitled to expect the Tribunal to take timely action to resolve complaints of discrimination brought before it.

6The Tribunal has generally deferred applications where there is an ongoing grievance under a collective agreement based on the same facts and human rights issues. 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 and other employment-related statutes as if they were part of the collective agreement (Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42).

7The Supreme Court thus confirmed that human rights tribunals are not the only decision-makers that can decide human rights claims. Where 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. In such a scenario, the Tribunal’s normal approach is to defer to the other proceeding.

8In this case, it is apparent that there is substantial overlap between the facts and human rights issues covered by the Application and those referred to in the grievance. The matter is still live and the grievance process has not concluded. It is not yet apparent whether or not the applicant’s grievance will be referred to arbitration. But if the applicant believes, on conclusion of the process, that his human rights issues have not been adequately addressed, he may ask to have his Application brought back on before the Tribunal.

9The Application will therefore be deferred pending the completion of the grievance process.

10The Tribunal directs the parties’ attention to Rules 14.3 and 14.4 which outline the procedure by which the Application may be brought back on after the conclusion of the grievance process.