Charron v. Ontario (Children and Youth Services), 2012 HRTO 2195

Human Rights Tribunal of Ontario

B E T W E E N:

Lianne Charron Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Minister of Children and Youth Services Respondent

INTERIM DECISION

Adjudicator: Paul Aterman Date: November 23, 2012 Citation: 2012 HRTO 2195 Indexed as: Charron v. Ontario (Children and Youth Services)

WRITTEN SUBMISSIONS

Her Majesty the Queen in Right of Ontario as represented by the Minister of Children and Youth Services, Respondent

Jonathan Rabinovitch, Counsel

Introduction

1The applicant filed this Application on September 11, 2012, alleging discrimination in employment on the basis of sex and family status contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). Specifically the applicant alleges the respondent has failed to accommodate her need to breastfeed her child. The applicant is a member of the Ontario Public Service Employees Union ("OPSEU") and had previously filed a grievance making the same allegations as well as a Workplace Discrimination and Harassment Prevention Policy complaint raising the same issues.

2On October 2, 2012 the Tribunal sent a Notice of Intent to Defer to the parties and to OPSEU requesting submissions on whether the Application should be deferred. OPSEU acknowledged receipt of the Notice but has provided no submissions on the issue. In its submissions the respondent asks the Tribunal to defer consideration of this Application until such time as the proceeding for hearing the grievance has concluded.

3The applicant did not file submissions with respect to the issue of deferral and the time for doing so has now passed.

DEFERRAL

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.

7Based on my review of the Application and the respondent's submissions I am satisfied that the facts and issues that are the subject matter of this Application are the same as those that form the basis of the grievance. I also note that the grievance has been scheduled for a hearing before the Grievance Settlement Board on March 12, 2013.

8Given that there is significant overlap in the subject matter of the grievance and this Application, and given that the applicant has not responded to the Tribunal's Notice, I am of the view that deferral to the grievance process is appropriate.

order

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

10The parties' attention is directed 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.

11I am not seized.