Wai Quan (Tina) Chen v. Ontario (Tourism, Culture and Sport), 2013 HRTO 1384

Human Rights Tribunal of Ontario

B E T W E E N:

Wai Quan (Tina) Chen

Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Minister of Tourism, Culture and Sport (Ontario Science Centre) and Martin Timusk

Respondents

INTERIM DECISION

Adjudicator: Dawn J. Kershaw

Date: August 14, 2013

Citation: 2013 HRTO 1384

Indexed as: Chen v. Ontario (Tourism, Culture and Sport)

WRITTEN SUBMISSIONS

Wai Quan (Tina) Chen, Applicant

Self-represented

Her Majesty the Queen in Right of Ontario as represented by the Minister of Tourism, Culture and Sport (Ontario Science Centre) and Martin Timusk, Respondents

Cathy Phan, Counsel

Introduction

1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of race, colour, ethnic origin, disability, sex and reprisal.

2On May 22, 2013, the Tribunal sent a Notice of Intent to Defer to the parties stating that it might be appropriate to defer consideration of the Application pending the resolution of another legal proceeding dealing with the subject-matter of the Application. The Tribunal directed the parties to deliver and file any written submissions which they wished to make in respect of the deferral issue within 30 days of the date of the Notice of Intent to Defer.

3The applicant filed written submissions requesting that the Tribunal not defer the Application because the Application deals with issues which are not dealt with in the other legal proceedings.

4The respondents filed a Request for an Order During Proceedings requesting deferral of this Application pending resolution of three outstanding grievances. The first grievance, dated February 15, 2012, alleges the respondent has failed to adhere to the recommendations set out in a number of ergonomist reports. It was scheduled for hearing but adjourned to allow the applicant to obtain further medical information. The parties are in the process of scheduling a new hearing date.

5Two additional grievances, dated February 26 and 28, 2013, raise issues related to workload assignments, distribution of workload and opportunities for skill development and knowledge transfer. The respondents will be asking that all three grievances be consolidated.

6The respondents assert the issues raised in the grievances are the same as those raised in the Application. The respondents also submit that the remedies sought are the same. The Tribunal may defer consideration of an application on such terms as it may determine, on its own initiative or at the request of a party (Rule 14.1). Deferral of an application seeks to ensure that proceedings dealing with the same facts or issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law. The Tribunal will generally defer an application where there is an ongoing grievance under a collective agreement based on the same facts and issues. However, the Tribunal must also consider whether deferral is the most fair, just and expeditious way of proceeding with the application.

7In this case, the earliest of the grievances presently is to be rescheduled and may be consolidated with the other grievances. Some, if not all, of the facts and issues raised in this Application are part of the grievance processes that are still in progress. Both the Application and the grievances relate to the accommodation of the applicant’s medical condition and restrictions. Since the issues in the Application and the grievances overlap, proceeding with the Application at the Tribunal could very well lead to inconsistent decisions on the facts and/or legal issues raised in the Application and the grievances. The primary purpose of deferring an Application is to avoid such potential inconsistency. I find that, in all of the circumstances, deferring the Application is appropriate. It will be the most fair and just way of proceeding, and since it appears the grievances are being scheduled to be heard presently, it also will be expeditious.

8The parties’ attention is drawn to Rules 14.3 and 14.4 of the Tribunal’s Rules of Procedure, which address how the Application may be brought back on before the Tribunal, following conclusion of the grievance process.