Kolmann v. Ontario (Community Safety and Correctional Services), 2012 HRTO 1973

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Carol Kolmann Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Minister of Community Safety and Correctional Services, Kathy Maccarone, Karl Vant’Hullenaar and Zoltan Polya Respondents

INTERIM DECISION

Adjudicator: Alison Renton Date: October 17, 2012 Citation: 2012 HRTO 1973 Indexed as: Kolmann v. Ontario (Community Safety and Correctional Services)

WRITTEN SUBMISSIONS

Carol Kolmann, Applicant Self-represented

Her Majesty the Queen in Right of Ontario as represented by the Minister of Community Safety and Correctional Services, Kathy Maccarone, Karl Vant’Hullenaar and Zoltan Polya, Respondents Donna Petri, 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 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 she has filed grievances with her bargaining agent, Ontario Public Service Employees Union (“the union”), about the allegations in her Application. In correspondence dated September 21, 2012, that she submitted to the Tribunal, the applicant advises that she sent communications to the respondents and the union seeking a deferral of her Application pending the resolution of her other legal proceedings. The applicant attached a copy of her communications to the respondents and the union. It is unclear whether or not the applicant sent her September 21, 2012, correspondence addressed to the Tribunal also to the respondents and the union.

3By letter dated October 4, 2012, counsel for the respondents wrote to the Tribunal advising that the respondents consent to the deferral of the Application.

4The 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.

5The 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).

6The 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.

7In this case, given that all the parties consent, the Application will therefore be deferring pending the completion of the grievance process.

8The 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 applicant is reminded that she is to copy the respondents on any communications she has with the Tribunal.