Nelson v. Ontario (Citizenship and Immigration), 2013 HRTO 223

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Hentrose Nelson

Applicant

-and-

Her Majesty in Right of Ontario as represented by the Minister of

Citizenship and Immigration

Respondent

INTERIM DECISION

Adjudicator: Sheri D. Price

Date: February 7, 2013

Citation: 2013 HRTO 223

Indexed as: Nelson v. Ontario (Citizenship and Immigration)

1This is an Application under s. 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging that the respondent employer discriminated against the applicant with respect to employment because of race, colour, disability and sex.

2On November 5, 2012, the Tribunal sent a Notice of Intent to Defer to the parties indicating that the Tribunal had determined that it might be appropriate to defer consideration of the Application pending the resolution of another legal proceeding, namely a grievance filed pursuant to a collective agreement between the respondent employer and the applicant’s bargaining agent. The Tribunal directed the parties to 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 opposes deferral of the Application. The applicant acknowledges that some of the facts and issues raised in the Application are part of a grievance which is still in progress. Specifically, the applicant acknowledges that she filed a grievance through her bargaining agent, the Association of Management, Administrative, and Professional Crown Employees of Ontario (“AMAPCEO”) in November 2011 alleging that the respondent employer discriminated against her on the basis of disability and sex when it required the applicant to go on pregnancy leave in October 2011, instead of permitting the applicant to take sick leave. Although the issue raised in the grievance is also raised in the Application to the Tribunal, the applicant does not wish the Tribunal to defer consideration of her human rights Application, pending the completion of the grievance and arbitration process. This, the applicant submits, is because the issues in her Application are broader than those raised in the grievance. In particular, whereas the November 2011 grievance alleges discrimination because of disability and sex, the Application filed with the Tribunal also alleges that the respondent harassed and discriminated against the applicant because of her race and colour.

4AMAPCEO supports the applicant’s position on the deferral issue. It submits that most of the allegations in the Application will not be addressed through the grievance process; and that, in any event, the grievance process is not at an advanced stage since no arbitration hearing has been scheduled. In the circumstances, AMAPCEO submits that there is no basis for the Tribunal to defer consideration of the Application.

5By contrast, the respondent submits that the Tribunal should defer consideration of the Application until the grievance process that the applicant has already engaged has run its course. Specifically, the respondent submits that the Tribunal ought to defer consideration of the Application pending the completion of the grievance and arbitration process provided for in the Crown Employees Collective Bargaining Act, 1993, S.O. 1993, c. 38 (”CECBA”). In support of its position, the respondent also points out that the Grievance Settlement Board has the authority to interpret and apply the provisions of the Code pursuant to s. 2(1) of the CECBA, which incorporates s. 48(12)(j) of the Labour Relations Act, 1995, S.O. 1995, c. 1, Sch. A.

6The 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 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, in light of the particular circumstances of each case, whether deferral is the most fair, just and expeditious way of proceeding with the application.

7In this case, although the facts and issues raised in the Application are not identical to those raised in the applicant’s November 2011 grievance, they do overlap significantly. Proceeding with the Application at the Tribunal could very possibly lead to inconsistent decisions on the facts and/or legal issues that are raised in both the Application and the grievance. 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.

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 and arbitration procedure.

9The Tribunal’s Rules of Procedure are available on the Tribunal’s website, www.hrto.ca.

10I am not seized of this matter.