HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Lynne Marie Troy
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: Maureen Doyle
Indexed as: Troy v. Ontario (Community Safety and Correctional Services)
Introduction
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 family status, age, association with a person identified by a ground protected under the Code and reprisal. This Interim Decision deals with the issue of whether the Application should be deferred pending the completion of related grievance proceedings.
2The applicant indicates in the Application that the facts of the Application are part of two union grievance proceedings that are still in progress, and encloses a copy of the grievances filed on her behalf by her union, the Ontario Public Service Employees Union (the “union”).
3In her Application, the applicant alleges that the respondent employer has not provided her with the accommodated schedule she requires in order to be able to meet the needs of her son who has a disability. She also alleges that the manner in which management at the respondent employer spoke with her and addressed her need for accommodation was discriminatory, and further that it amounted to reprisal for having pursued accommodation.
4The applicant included copies of the grievances in her Application. One states that the employer failed to accommodate the applicant’s needs and the other grievance states that a manager “discriminated and harassed and bullied [her] and poisoned [her] work environment while in meetings that were held in regard to [her] request for accommodation”. Both grievances assert that the respondent employer’s actions were in violation of various provisions of the collective agreement and the Code.
5On July 17, 2012, the Tribunal sent a Notice of Intent to Defer (NOID) to the parties, inviting submissions from the parties and the union with regard to the question of whether this Application should be deferred pending the resolution of the grievances.
6On July 26, 2012, the applicant wrote to the Tribunal, copying the other parties, submitting that the Tribunal should not defer this matter, as the “grievance process is not always expeditious”.
7On September 10, 2012, the respondent wrote to the Tribunal, copying the other parties, submitting that the Tribunal should defer this matter pending the resolution of the grievance process in relation to these grievances. It submitted that the allegations made in the Application and the subject matter of the grievances was identical and that the grievances would be proceeding to hearing before the Public Service Grievance Settlement Board (the “GSB”), which has the authority to address allegations of violations of the Code.
8The union has not made submissions regarding whether this Application should be deferred.
9The 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.
10The 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).
11The Tribunal has also found that the GSB has the authority to address Code issues brought before it (see Lipke v. Ontario (Community Safety and Correctional Services 2008 HRTO 285).
12The 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.
13In 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 grievances. I am satisfied that the general concerns the applicant raises about the speed of the grievance process do not justify a departure from the Tribunal’s normal approach. The matter is still live and the grievance process has not concluded. But if the applicant believes, on conclusion of the process, that her human rights issues have not been adequately addressed, she may ask to have her Application brought back on before the Tribunal.
14The Application will therefore be deferred pending the completion of the grievance process.
15The 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. The Union’s Request to Intervene will be dealt with by the Tribunal if the Application is brought back on.
16I am not seized.
Dated at Toronto, this 21st day of September, 2012.
”signed by”
Maureen Doyle
Vice-chair