Bernadette Cusack v. Her Majesty the Queen in Right of Ontario as represented by the Minister of Community Safety and Correctional Services and Kevin Sawicki, 2013 HRTO 1815

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Bernadette Cusack

Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Minister of Community Safety and Correctional Services and Kevin Sawicki

Respondents

INTERIM DECISION

Adjudicator: Paul Aterman

Date: October 28, 2013

Citation: 2013 HRTO 1815

Indexed as: Cusack v. Ontario (Community Safety)

WRITTEN SUBMISSIONS

Bernadette Cusack, Applicant

Self-represented

Her Majesty the Queen in Right of Ontario as represented by the Minister of Community Safety and Correctional Services and Kevin Sawicki, Respondents

Indira Sawh, Counsel

1This Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleges discrimination with respect to employment because of age.

2The applicant worked as a nurse at a correctional facility run by the corporate respondent. She alleges that she was subjected to harassment and intimidation and ultimately pressured into resigning. She maintains that her age was a factor in the treatment she claims to have been subjected to.

3As the Application indicates that the issues raised by the applicant are also the subject matter of pending grievance proceedings, the Tribunal requested submissions from the parties as to whether the Application should be deferred until those proceedings are resolved.

4The applicant has filed no submissions.

5The respondents argue that there are multiple grievances filed under the collective agreement that are currently outstanding before the Grievance Settlement Board (“the Board”). The grievances deal with the same facts and issues that arise in the Application. Board arbitrators have the authority and the duty to apply the Code. For these reasons the respondents argue that deferral pending resolution of the grievances is appropriate.

6The Tribunal may defer consideration of an application, on such terms as it may determine, and on its own initiative (Rule 14.1). 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 allegations of discrimination brought before it.

7In this case grievance proceedings have been initiated and there is a substantial overlap of facts and issues between those proceedings and the ones raised in this Application. The Board has the authority to address any allegations of discrimination the applicant may raise in those proceedings.

8This overlap of facts and issues, along with failure of the applicant to set out why the Application should not be deferred, are reasons to exercise discretion in favour of deferral.

order

9The Application is deferred pending resolution of the grievance proceedings.

10The parties’ attention is directed to Tribunal Rules 14.3 and 14.4, which outline the procedure by which a party may seek to bring the Application back on after the conclusion of the grievance process.