Guthrie v. Ontario (Children and Youth Services), 2014 HRTO 1162

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jackie Guthrie

Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Ministry of Children and Youth Services

Respondent

INTERIM DECISION

Adjudicator: Jo-Anne Pickel

Date: August 1, 2014

Citation: 2014 HRTO 1162

Indexed as: Guthrie v. Ontario (Children and Youth Services)

WRITTEN SUBMISSIONS

Jackie Guthrie, Applicant

Self-represented

Her Majesty the Queen in Right of Ontario as represented by the Ministry of Children and Youth Services, Respondent

George Parris, Counsel

Ontario Public Service Employees Union, Affected Party

Thom Yachnin, Counsel

Introduction

1The purpose of this Interim Decision is to determine whether this Application should be deferred pending the resolution of the grievance filed on behalf of the applicant.

2The applicant alleges that the respondent discriminated against her contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended ("Code"), when it failed to hire her for a full-time position as a cook.

3Both the respondent and the applicant's union advised the Tribunal that the applicant had filed a grievance with respect to the matter raised in her Application which is has been referred to arbitration.

4The applicant was advised of the respondent's deferral request. She was advised that the Tribunal would consider any submissions she filed in response to the respondent's request before determining how to proceed in this case.

5By correspondence filed July 29, 2014, the applicant opposed deferral on the basis that she was not only claiming a violation of the collective agreement but also of the Code.

decision

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 of the Tribunal's Rules of Procedure). 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 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 a part of the collective agreement. See Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42. Thus, the Tribunal will generally defer an Application where there is an ongoing grievance under a collective agreement based on the same facts and issues.

7Since the issues in the Application and the grievances are the same, proceeding with the Application could lead to inconsistent decisions on the facts and/or legal issues raised in the Application and the grievance. As a result, I find it appropriate to defer this Application pending the completion of the grievance proceeding in this matter.

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 proceedings. The Rules of Procedure are available on the Tribunal's website, www.hrto.ca under "New Applications".

ORDER

9For the reasons set out above, the Tribunal defers consideration of the Application pending the completion of the grievance proceeding in this matter.

10I am not seized of this matter.