William Jackson v. Her Majesty the Queen in Right of Ontario as represented by the Minister of Labour and Peter Gallus, 2013 HRTO 87

Human Rights Tribunal of Ontario

BETWEEN:

William Jackson Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Minister of Labour and Peter Gallus Respondents

INTERIM DECISION

Adjudicator: David Muir Date: January 16, 2013 Citation: 2013 HRTO 87 Indexed as: Jackson v. Ontario (Labour)

Written Submissions

Her Majesty the Queen in Right of Ontario as Represented by the Minister of Labour and Peter Gallus, Respondents Stephen J. Shamie, Counsel

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

2The respondents have filed a Request for Order During Proceeding (“Request”) seeking the deferral of this Application pending the resolution of a complaint filed with the Public Service Grievance Board (“PSGB”). The applicant has not responded to this Request and the time for doing so has passed.

3The 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.

4However the Tribunal has generally deferred applications where there is an ongoing grievance under a collective agreement based on the same facts and 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).

5Accordingly, 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.

6In this case, it is apparent that the issues raised in the PSGB complaint are essentially the same as those raised in the Application. Although the applicant indicated in the Application that he was not seeking the deferral of the Application pending the resolution of the PSGB complaint he has not opposed this Request. In my view it is most fair, just and expeditious to defer this Application pending the conclusion of the other proceeding launched by the applicant. The Application will therefore be deferred pending the completion of the grievance process.

7The 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.

8I am not seized.