Khan v. Ontario (Community and Social Services), 2013 HRTO 1058

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ihsaan Khan

Applicant

-and-

Her Majesty the Queen in Right of Ontario as Represented by the Minister of Community and Social Services (Family Responsibility Office) and by the Minister of Government Services, Shelley Underlander, Frances Etienne, Joe Caruso, Louise Pachal, Bani Bawa, Marlene McRaie, Brenda McCullagh and Heather Hanrahan

Respondents

INTERIM DECISION

Adjudicator: Mary Truemner Date: June 14, 2013 Citation: 2013 HRTO 1058 Indexed as: Khan v. Ontario (Community and Social Services)

WRITTEN SUBMISSIONS

Her Majesty the Queen in Right of Ontario as Represented by the Minister of Community and Social Services (Family Responsibility Office) and by the Minister of Government Services, Shelley Underlander, Frances Etienne, Joe Caruso, Louise Pachal, Bani Bawa, Marlene McRaie, and Heather Hanrahan, Respondent(s)

Caroline Cohen, Counsel

OPSEU, Interested Person

Adrienne Liang, Counsel

Introduction

1This is an Application filed on March 7, 2013 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). This Interim Decision deals with the issue of whether the Application should be deferred pending the completion of a related grievance proceeding.

DEFERRAL

2The applicant indicates in the Application that the facts of the Application are part of a union grievance proceeding that is still in progress, and encloses a copy of the grievances filed on his behalf by his union, OPSEU (the “union”).

3The Tribunal sent to the parties and to OPSEU, and affected person, a Notice of Intent to Defer on April 22, 2013, providing 30 days for them to respond with submissions. Neither the applicant nor the personal respondent, Brenda McCullah, has responded, but the other respondents and the union support the deferral of the Application on the basis that grievance proceedings are ongoing. They submit that the grievances deal with the same facts and issues as contained in the Application and that the grievances are before the Grievance Settlement Board which has the ability to interpret and apply the Code.

4The 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.

5The 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).

6The 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.

7In this case, it is apparent that there is substantial overlap between the facts and human rights issues covered by the Application and those referred to in the grievances. The matter is still live and there is no indication from the parties that the grievance process has concluded. If the applicant believes, on conclusion of the grievance process, that his human rights issues have not been adequately addressed, he may ask to have his Application brought back on before the Tribunal.

8The Application will therefore be deferred pending the completion of the grievance process.

9The 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.

10I am not seized.