Oluware Johnson v. Region of Peel/Malton Village, 2012 HRTO 47

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Oluware Johnson

Applicant

-and-

Region of Peel/Malton Village, Angela Archer, Nicole Rodney and Yvonne Asamouth

Respondents

INTERIM DECISION

Adjudicator: Alan G. Smith

Date: January 10, 2012

Citation: 2012 HRTO 47

Indexed as: Johnson v. Region of Peel/Malton Village

WRITTEN SUBMISSIONS BY:

Canadian Union of Public Employees, Local 966, Affected Party Paul O’Ryan, Representative

INTRODUCTION

1This is an Application filed June 20, 2011, pursuant to section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, alleging discrimination in employment on the basis of race, colour, place or origin and citizenship.

2This Interim Decision deals with a Notice of Tribunal Intent to Defer proposing that the Application be deferred pending the outcome of the ongoing workplace grievance-arbitration process undertaken by the applicant and the respondent employer.

3The Registrar delivered a Notice of Tribunal Intent to Defer to the applicant and respondents on November 15, 2011. In that correspondence the parties were advised that written submissions with regard to the deferral issue must be filed with the Tribunal by December 15, 2011.

4Submissions were not received from either of the parties.

5On December 15, 2011, the applicant’s bargaining agent, Canadian Union of Public Employees, Local 966, (CUPE) filed submissions in support of deferral. CUPE stated:

The Local Union believes it may be appropriate to defer this Application pending the resolution of two Grievances, one dated April 12, 2010 (No. 15/10) and the other May 6, 2011, (No. 24/11), filed on the Applicant’s behalf, both of which would appear to address the same subject-matter of the Application. Both of these Grievances were heard at a Step 3 meeting with the Employer on or about December 8, 2011, and the Applicant and the Local Union are currently awaiting written responses to them.

ANALYSIS

6Deferral of an application ensures that proceedings dealing with the same issues do not run concurrently, raising the possibility of inconsistent decisions on facts or law.

7While deferral is not automatic, it is granted to avoid adjudicative duplication. The Tribunal has held that some of the factors that may be relevant in deciding whether to defer consideration of an application are the subject matter of the other proceeding, the nature of the other proceeding, the type of remedies available in the other proceeding, and whether it would be fair overall to the parties to defer, having regard to the status of each proceeding and the steps that have been taken to pursue them. See, Christianson v. College of Physicians and Surgeons, 2009 HRTO 438, Groves v. Ontario (Community Safety and Correctional Services), 2010 HRTO 1779 and Gordon v. Leisureworld Caregiving Centre, 2011 HRTO 577.

8The Tribunal has generally deferred applications where there is an ongoing grievance under a collective agreement based on the same facts and human rights issues: Blackman v. Ontario (Minister of Community Safety and Correctional Services), 2009 HRTO 970. 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 as if they were part of the collective agreement. See, Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42, and Colella v. Toronto Catholic District School Board, 2011 HRTO 1289.

9A review of the grievances filed by CUPE reveals that, as noted by CUPE, they are virtually identical to the subject matter of the Application. The grievance filed on May 6, 2011, in fact reads in part, “Management is in violation of…[the] Ontario Human Rights Code…Therefore I request that…any ruling deemed appropriate by an arbitrator or board”.

ORDER

10In these circumstances, I find that the most fair, just and expeditious approach is to defer consideration of this Application pending the conclusion of the grievance arbitration process. The Tribunal directs the parties’ attention to Rules 14.3 and 14.4, which outline the process by which a party may request, in accordance with Rule 19, that the Tribunal proceed with an application after the conclusion of another process.

11I am not seized of this matter.