HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Rodney Whitlow
Applicant
-and-
Her Majesty the Queen in Right of Ontario as represented by the Minister of Government Services
Respondent
INTERIM DECISION
Adjudicator: Paul Aterman
Indexed as: Whitlow v. Ontario (Government Services)
WRITTEN SUBMISSIONS
Rodney Whitlow, Applicant
Self-represented
Her Majesty the Queen in Right of Ontario as represented by the Minister of Government Services, Respondent
Jennifer Richards, 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. The applicant self-identifies as Aboriginal. He has been a public servant for 25 years and works in the Aboriginal Affairs Branch of a provincial government department. He alleges that the current Director of the branch (“the incumbent”) was appointed without there being a job posting or a competition and that this amounts to a discriminatory choice, as he and other qualified Aboriginal public servants were precluded from competing for the position.
2The respondent requests that consideration of this Application be deferred pending the resolution of a grievance that the applicant has filed. For the reasons that follow this request is denied. However, before the Application proceeds further the Tribunal will need to determine whether it should be dismissed for delay. The parties will have an opportunity to make submissions on the delay issue.
request to defer
3While the Application is focused on the allegedly discriminatory appointment of the incumbent, it also suggests that discrimination may be a factor in other appointments in the branch and in how the branch functions. This is evident from the remedies the applicant seeks and from his Reply to the Response. The remedies he seeks are:
the holding of an open competition for the Director position;
the removal of all employment equity barriers, especially for OPS Aboriginal Affairs positions; and
an investigation into all recent competitions relating to Aboriginal Affairs positions in the department to determine if they did not respect human rights norms.
4In addition to filing this Application on May 10, 2013, the applicant filed a grievance three days later. The grievance alleges that the respondent:
has not addressed long-standing, unfair distributions of workload;
has failed to sustain a supportive work culture;
has allowed the continuation of discrimination and harassment in the workplace; and
has discriminated against the applicant because he has raised issues that engage the respondent’s Workplace Harassment and Discrimination Policy.
5The remedies sought under the grievance are that the respondent:
rectify the uneven workload distribution by matching it to the Branch median;
restore the work environment in a culturally appropriate and timely manner;
pay the applicant merit pay that he alleges was withheld;
disclose the documentation related to competitive processes for two positions within the Branch (these are unrelated to the Director position); and
run new competitive processes for those two positions.
6The respondent argues that “at least some” of the subject matter of this Application also forms the basis of the grievance that may be referred to the Grievance Settlement Board (“the Board”) for arbitration. Board arbitrators have the authority and the obligation to apply the Code, and the respondent maintains that there is a risk of a duplication of proceedings if the Application is not deferred.
7The applicant opposes deferral. He maintains that the subject matter of the Application and the grievance are quite distinct. The Application is focused on the process relating to the appointment of the incumbent, while the grievance deals with a series of other matters relating to the operation of the branch.
8The 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.
9I agree with the applicant that the substance of the Application is distinct from that of the grievance. The central allegations in the Application are about the process used to appoint the incumbent to the Director position. The grievance makes no mention of that staffing process. Instead it deals with two issues related specifically to the applicant (workload balancing and performance pay), an issue of the general workplace climate and an issue about the steps taken in two appointment processes that are both unrelated to filling the Director position. The respondent pleads that there is an overlap of issues between the two proceedings, but offers no specifics to support that assertion.
10It is evident that what is common to both the Application and the grievance is the applicant’s perception that there are serious problems in the workplace and that cultural insensitivity and racism are at the root of these problems. That is the context for both the Application and the grievance. The applicant’s Reply contains a number of allegations and references to facts that may also have a bearing on the allegations raised in the grievance. However, the fact that both proceedings stem from the same context is not, of itself, a sufficient reason to defer. What matters more is whether there is an overlap in the specific allegations that are at the core of each proceeding. That is not the case here. For these reasons the request to defer is denied.
delay
11The Tribunal has no jurisdiction to deal with an Application that falls outside the timelines prescribed by s. 34 of the Code unless it is satisfied that any delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.
12In filing its Response the respondent requested that the Application be dismissed for delay on the ground that the incumbent was appointed more than two years before the Application was filed. This Application was filed on May 10, 2013, and thus the issue to be determined is whether the alleged discrimination took place after May 10, 2012.
13The applicant’s Reply flatly denies that the Application was filed out of time, but beyond this assertion it says nothing about the respondent’s claim regarding the timing of the incumbent’s appointment. The Application appears to suggest that the appointment of the incumbent was communicated in October of 2012, and by a third-party consultant rather than by the relevant authority in the department.
14It is unclear to me from reading the Application, Response and Reply when the incumbent was appointed and how this was communicated to the Branch, including the applicant. Was the incumbent placed in the Director position on an acting or a permanent basis on October 25, 2010? If the former, when was the subsequent decision to make the incumbent permanent taken and communicated?
15If the Application was filed in time, then it will proceed to mediation. If it was not filed in time it will be dismissed unless the applicant shows that any delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.
16Before the Application proceeds any further the parties are directed to file submissions and any supporting documents on this issue in accordance with the timelines set out below.
order
17The request to defer is denied.
18The parties are directed to provide to each other and file with the Tribunal their submissions and any supporting documents in accordance with the following timelines:
The respondent is to provide to the applicant and file with the Tribunal its submissions and supporting documents no later than November 12, 2013; and
The applicant is to provide to the respondent and file with the Tribunal its submissions and supporting documents no later than November 26, 2013.
Dated at Toronto, this 29th day of October, 2013.
“signed by”
Paul Aterman
Vice-chair