HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Melanie Howarth
Applicant
-and-
Niagara Emergency Medical Services/Regional Municipality of Niagara, Gary Burroughs, Elfreide lane, Dennis Delano, John Cunnane, Kevin Smith, Steve VanValkenberg, Franco Meffe, Andrew Scott and Daimen Perry
Respondents
INTERIM DECISION
Adjudicator: Ena Chadha
Indexed as: Howarth v. Niagara Emergency Medical Services
1The applicant filed this Application on February 22, 2011, under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination and reprisal with respect to employment on the basis of marital status.
2This Application is related to Application 2012-10980-I as filed by the applicant’s spouse with respect to the same alleged circumstances. The applicant’s narrative notes that there is a labour grievance regarding the facts alleged in the Application. The Application includes a copy of a grievance, dated December 15, 2011, filed by the applicant’s union on behalf of the applicant alleging marital status discrimination contrary to the Code.
3On March 6, 2012, the Tribunal issued a Notice of Intent to Defer (“Notice”). The Notice indicated that, pursuant to Rule 14 of the Tribunal’s Rules of Procedure, the Tribunal may defer an Application pending the resolution of another legal proceeding. The Tribunal invited the parties, and the applicant’s union as an affected party, to file written submissions within 30 days of the date of the Notice as to why consideration of the Application should or should not be deferred.
4On March 19, 2012, the respondents wrote to the Tribunal confirming that there was an outstanding workplace grievance. The respondents submit that the resolution of the grievance either through settlement or litigation should resolve all issues raised by this Application. The respondents also argue that the various personal respondents should be removed from the Application because all of these individuals were acting on behalf of the organizational respondent in the course of their respective employment.
5Neither the applicant nor the applicant’s union filed submissions and the timeline for doing so has elapsed.
DEFERRAL
6The 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 (Rule 14.1). Deferral 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.
7Some factors that have been identified as relevant in deciding whether to defer consideration of an application before the Tribunal are the subject matter of the other proceeding, the nature of the other proceeding, the types 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 Baghdasserians v. 674469 Ontario, 2008 HRTO 404.
8The Tribunal generally defers applications where the parties are already engaged in a concurrent legal proceeding, particularly when the other proceeding is an ongoing grievance under a collective agreement based on the same facts and issues as raised in the Application.
9I see no reason to depart from this approach and find that deferral is warranted in the present circumstances. The applicant’s grievance is based on the same facts, allegations and issues as raised in the current Application and the grievance seeks some of the same remedies. The grievance was commenced prior to the Application.
10Given that the grievance alleges marital status discrimination and cites the Code, it appears that the applicant’s human rights concerns may be resolved or dealt with through the grievance process. 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. See Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42.
CONCLUSION
11The Tribunal orders that the Application is deferred pending the conclusion of the grievance proceedings.
12The Tribunal directs the parties’ attention to Rules 14.3 and 14.4 of the Tribunal’s Rules of Procedures which set out the process if a party wishes to proceed with an Application pending the conclusion of another proceeding.
13If and when any party seeks, in accordance with Rule 14, to bring the Application back on before the Tribunal, the Tribunal will consider the preliminary issues of consolidation of the two Applications and the respondents’ request to remove the personal respondents.
14I am not seized of this matter.
Dated at Toronto, this 23rd day of April, 2012.
“Signed by”
Ena Chadha
Vice-chair