HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Caley McPhail
Applicant
-and-
Her Majesty the Queen in Right of Ontario as represented by the Ministry of Community Safety and Correctional Services, Steve Walker, Kathy Kinger,
Lee Smith, Judy Hagen, Mike Goold and Carol Peterson
Respondents
INTERIM DECISION
Adjudicator: Ena Chadha
Indexed as: McPhail v. Ontario (Community Safety and Correctional Services)
WRITTEN SUBMISSIONS
Her Majesty the Queen in Right of Ontario as )
represented by the Ministry of Community )
Safety and Correctional Services, )
Steve Walker, Kathy Kinger, ) Jordana K. Joseph, Counsel
Lee Smith, Judy Hagen, )
Mike Goold and Carol Peterson )
, Respondents )
1The applicant filed this Application on January 18, 2012, under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), alleging discrimination, sexual solicitation/advances and reprisal with respect to employment on the basis of disability, sex, sexual orientation, family status and marital status.
2The Application indicates that the applicant has a number of outstanding grievances and the applicant requests that the Tribunal defer the Application until the other proceedings are completed.
3On March 13, 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 April 2, 2012, the respondents filed submissions indicating that it supports deferral because the applicant has four grievances in progress that relate to the subject matter of the Application. The respondent indicates that, since the grievances are ongoing and overlap with the Application, it would be more fair and efficient to defer the Application to avoid concurrent proceedings.
DEFERRAL
5The 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.
6Some 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.
7The Tribunal generally defers applications where the parties are already engaged in a concurrent legal proceeding, particularly when the other proceeding is on-going grievance under a collective agreement based on the same facts and issues as raised in the Application. In so doing, the Tribunal has relied on Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42, wherein the Supreme Court of Canada confirmed 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.
8I see no reason to depart from the Tribunal's general approach and find that deferral is warranted in the present circumstances. The parties agree that the Application should be deferred. All four of the applicant's grievances were commenced prior to this Application and appear to be related to the facts and issues raised in the Application.
9As such, I determine that the most fair, just and expeditious approach is to defer consideration of this Application pending the conclusion of the applicant's grievances and the grievance proceedings.
CONCLUSION
10The Tribunal orders that the Application is deferred pending the conclusion of the applicant's grievances and the grievance proceedings.
11The Tribunal directs the parties' attention to Rules 14.3 and 14.4 of the Tribunal's Rules of Procedures which sets out the process if a party wishes to proceed with an Application pending the conclusion of another proceeding.
12I am not seized of this matter.
Dated at Toronto, this 2nd day of May, 2012.
"Signed by"
Ena Chadha
Vice-chair