HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Stephen Nenadov
Applicant
-and-
Her Majesty the Queen in Right of Ontario as represented by the Minister of Community Safety and Correctional Services, Steven Small, Katherine Kinger, John McFarlane, Steve Walker, Michael Goold, Judy Hagen, Richard Doner, Warren Hanton and Ann Fowler
Respondents
INTERIM DECISION
Adjudicator: Judith Keene
Indexed as: Nenadov v. Ontario (Community Safety and Correctional Services)
1This is an Interim Decision in respect of an Application filed on July 25, 2011 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 deals with the issue of whether the Application should be deferred pending the completion of related grievance proceedings.
2The applicant indicated in the Application that the facts of the Application are part of a union grievance proceeding that is still in progress, and enclosed copies of grievances filed on his behalf by his union.
3On November 16, 2011, the Registrar sent the parties a Notice of Intent to Defer. The parties were required to send any response they wished to make within thirty days of the date of the Notice. As of the date of this decision, only the respondents have sent a response.
4In their response, the respondents stated that all of the applicant’s grievances were based on the same facts and issues as those identified in the application, and that these grievances have not been settled, decided or withdrawn. The respondents indicated that the grievances have all been referred to arbitration at the Grievance Settlement Board and that the first day of the arbitration hearing was held on October 28, 2011. “On that date, an interim memorandum of settlement was signed [by the applicant, the institutional respondent and the union], but the grievances were not fully and finally resolved. The arbitration hearing with respect to all grievances will resume on March 29, 2012, and additional dates have been scheduled.”
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. I am satisfied that the circumstances do not justify a departure from the Tribunal’s normal approach. The matter is still live and the grievance arbitration process has not concluded.
9If 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.
10The Application will therefore be deferred pending the completion of the grievance arbitration process.
11The 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.
Dated at Toronto, this 9th day of February, 2012.
“signed by”
Judith Keene
Vice-chair