Chartrand v. Ontario (Government Services), 2012 HRTO 2002

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Sherry Chartrand Applicant

-and-

Her Majesty the Queen in Right of Ontario as Represented by the Minister of Government Services Respondent

INTERIM DECISION

Adjudicator: Kathleen Martin Date: October 23, 2012 Citation: 2012 HRTO 2002 Indexed as: Chartrand v. Ontario (Government Services)

WRITTEN SUBMISSIONS

Sherry Chartrand, Applicant Patrick James and Niiti Simmonds, Counsel

Her Majesty the Queen in Right of Ontario, as represented by the Ministry of Government Services, Respondent George Parris, 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"). This Interim Decision determines whether the Application should be deferred to an internal workplace discrimination and harassment prevention policy investigation.

BACKGROUND

2The Application was filed June 15, 2012 alleging discrimination in employment on the basis of disability. Among other things, the applicant alleges that the respondent failed to accommodate her disability and deliberately suspended her and commenced a misconduct investigation in order to reprise against her for requesting accommodations and initiating a support group for disabled employees.

3Initially the respondent did not file a Response. However, following Interim Decision 2012 HRTO 1652, the respondent filed a Response denying the allegations. In addition, the respondent sought deferral of the Application to an internal investigation process; namely an investigation into the applicant's allegation that she was being discriminated against in respect of disability pursuant to the respondent's internal Workplace Harassment and Discrimination Prevention Policy ("WDHP").

4The respondent does not state expressly when the investigation commenced but does indicate that it is presently awaiting a response from the applicant in order for the complaint to move forward.

5On September 21, 2012, the Tribunal delivered the Response to the applicant and directed the applicant to file a Reply and include submissions in response to the respondent's Request to Defer.

6On October 5, 2012, the applicant filed a Reply and included submissions on the Request to Defer. The applicant submits that the WDHP investigation is not a legal proceeding and the respondent's request should be dismissed. The applicant relies on specific provisions of the WHDP which expressly acknowledge that an employee may also apply to the Tribunal; the nature of the process (no right to procedural fairness, no right to counsel); and the absence of a resolution of the investigation within a specified time frame. Further the applicant points to the timing of the WDHP which it says was commenced upon receipt of the Application.

DECISION

7The 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. See Rule 14.1 of the Tribunal's Rules of Procedure. The Tribunal must consider, in light of the particular circumstances of each case, whether deferral is the most fair, just and expeditious way of proceeding with the Application.

8Deferral of an application ensures that proceedings dealing with the same issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law. However, deferral is not automatic where the parties are involved in other legal proceedings. The Tribunal must also consider, in light of the particular circumstances of each case, whether deferral is the most fair, just and expeditious way of proceeding.

9The Tribunal's jurisprudence has held that an internal investigation or internal complaints process does not generally constitute "a proceeding" within the meaning of section 45.1 of the Code. See for example, Maurer v. Metroland Media Group, 2009 HRTO 200; Cedeno v. Martens, 2012 HRTO 383. Further, in Armstrong v. Ontario (Revenue), 2012 HRTO 1527, the Tribunal specifically found that the WDHP investigation process was not a "proceeding" within the meaning of s. 45.1 of the Code.

10While these decisions have occurred in the context of s. 45.1 of the Code, the Tribunal has applied this case law in the context of a deferral request, See, NGO v. L-3 Electronic Communications, 2012 HRTO 1571.

11The Request to Defer is denied. The WDHP is an internal investigation and not a legal proceeding which could lead to potentially inconsistent findings on fact and law. I note that the WDHP itself expressly reflects that the policy does not override the right of an employee to pursue other avenues of redress including an application before the Tribunal. In the circumstances, I find it fair, just and expeditious for the Tribunal to proceed with the Application.

12As the parties have agreed to mediation, the Application will be scheduled for mediation.

13I note that there is an outstanding Request for Order During Proceeding seeking an order that the respondent be deemed to have accepted all of the allegations in the Application and a number of alternative orders. This Request will be addressed if necessary following mediation.