Archer v. Ontario (Community Safety and Correctional Services), 2014 HRTO 1130

B E T W E E N:

Mark Archer Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Minister of Community Safety and Correctional Services and the Minister of Government Services; Peter Sherfield, John Hosegrove; Bob Hudspeth; Rod Botham; Chuck Marchegiano; Janet Gauthier; Mark Parisotto; Margaret Smith; Jennifer Kroft; Steven Small; Kevin Costante; Stephen Rhodes; Andrea Monteiro; David Hatt; Bo Jiang Respondent

-and-

Ontario Public Service Employees Union Affected Party

And Between:

Zuri White Applicant

-and-

Ontario Public Service Employees Union Affected Party

INTERIM DECISION

Adjudicator: David Muir Date: July 29, 2014 Citation: 2014 HRTO 1130 Indexed As: Archer v. Ontario (Community Safety and Correctional Services)

WRITTEN SUBMISSIONS

Marck Archer, Applicant Self-represented

Her Majesty the Queen as represented by the Minsters of Community Safety and Correctional Services and Government Services; Various individual respondents, Respondent(s) Jenifer Richards, Counsel

1These are two Applications filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code").

2On June 27, 2014 the Tribunal issued a Notice of Intend to Defer (NOID) these Applications pending the conclusion of grievance arbitrations commenced by the affected party on behalf of the applicant.

3The applicants oppose the deferral of these Applications. The applicants concede that the issues raised in the two proceedings are essentially the same and also acknowledge that the Grievance Settlement Board has the authority to consider and apply the Code. The applicants argue that the Tribunal may be the more effective forum for vindicating his human rights claims because the GSB does not enforce its own orders and does not impose fines on individuals.

4The 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.

5However 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).

6Accordingly where the parties are already engaged in a concurrent legal proceeding in which they are raising the same 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.

7In this case, it is apparent that the issues raised in the grievance are essentially the same as those raised in the Application. The applicant's argument that the GSB will not impose penalties on individual respondents is insufficient to overcome the concerns with two proceedings raising identical issues proceeding concurrently. The Tribunal does not impose fines on parties but provides appropriate remedies to applicants who are able to prove that their Code rights have been violated. Whether a remedy is required of an individual respondent will depend on the circumstances however one of the factors the Tribunal considers in making that determination is whether there is an organizational respondent which can provide an effective remedy. In any event whether or not there is any slight difference in the remedial response of the GSB or the Tribunal, assuming that discrimination is found to have occurred, in my view it is most fair, just and expeditious to defer this Application pending the conclusion of the other proceedings. These Applications will therefore be deferred pending the completion of the grievance process.

8The 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.

9The other issues raised by the applicants may be addressed at the appropriate time.

10I am not seized.

Dated at Toronto, this 29th day of July, 2014.

"Signed By"

David Muir Vice-chair