Human Rights Tribunal of Ontario
Between:
Janet McFarlane Applicant
-and-
Scott Farraway Respondent
Interim Decision
Adjudicator: Naomi Overend Date: March 29, 2012 Citation: 2012 HRTO 657 Indexed as: McFarlane v. Farraway
1The applicant filed this Application on May 18, 2011, alleging discrimination in employment on the basis of sex and reprisal contrary to the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). The applicant, who is a member of Ontario Public Service Employees Union ("OPSEU"), filed four related grievances with respect to the allegations of discrimination found in her Application.
2In his Response, filed on November 15, 2011, the respondent asks the Tribunal to defer consideration of the Application until such time as the proceeding for hearing the grievances concludes. The Tribunal specifically drew this request to the attention of the applicant when it served the Response on her. The applicant did not file a Reply or any submissions with respect to the issue of deferral and the time for doing so has now passed.
Request to Defer
3The 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.
4The 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).
5The 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.
6Given that there significant overlap in the grievances and this Application, and given the applicant's silence in the face of the request, the Tribunal is of the view that deferral to the grievance process is appropriate. The Application will be deferred pending the completion of the grievance process.
7The 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.
8I am not seized of this matter.
Dated at Toronto, this 29th day of March, 2012.
"Signed by"
__________________________________
Naomi Overend Vice-chair