HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Lynda Gough
Applicant
-and-
Her Majesty the Queen in Right of Ontario, as represented by the Minister of Community Safety and Correctional Services
Respondent
INTERIM DECISION
Adjudicator: Ena Chadha
Indexed as: Gough v. Ontario (Community Safety and Correctional Services)
WRITTEN SUBMISSIONS
Her Majesty the Queen in Right ) Susan Munn, Counsel of Ontario, as represented by the ) Minister of Community Safety ) and Correctional Services, ) Respondent )
1The applicant filed this Application on October 26, 2011, under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment on the basis of disability. The applicant alleges that she has been harassed and discriminated by the respondent’s application of its attendance management practices and policies.
2The Application notes that there is a grievance regarding the facts as alleged in the applicant’s narrative. The Application includes a copy of the grievance, dated January 3, 2010, filed by the applicant’s union on behalf of the applicant alleging harassment and discrimination contrary to the Code.
3On January 30, 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, Ontario Public Services Employees Union (“OPSEU”), as an affected party, to file written submissions no later than February 29, 2012 as to why consideration of the Application should or should not be deferred.
4On February 29, 2012, the respondent wrote to the Tribunal confirming that there was an outstanding workplace grievance which has been referred to the Grievance Settlement Board for arbitration. The respondent submits that the grievance is identical to the Application and, therefore, the Tribunal should defer the Application pending the completion of the grievance process. The respondent also argues that if and when the Application proceeds the Tribunal should exercise its power to dismiss the Application pursuant to section 45.1 of the Code.
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 on-going 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 same set of facts and legal issues underlie the current Application and the grievance and both seek similar remedies. The grievance was commenced prior to the Application and has progressed through Stages 1 and 2 of the grievance process. Based on the respondent’s submissions, it appears that the grievance remains outstanding and may either be resolved or scheduled for arbitration.
10Given that the grievance alleges disability 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 respondent may at that time pursue its request to dismiss pursuant to s. 45.1 of the Code.
14I am not seized of this matter.
Dated at Toronto, this 30^th^ day of April, 2012.
“signed by”
Ena Chadha
Vice-chair