Hopkinson v. Ontario (Attorney General), 2014 HRTO 1571

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Denese Hopkinson

Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Ministry of the Attorney General, Debbie Dunn, Julie Weber, and Katarzyna Gierejkiewicz

Respondents

INTERIM DECISION

Adjudicator: Dawn J. Kershaw

Date: October 24, 2014

Citation: 2014 HRTO 1571

Indexed as: Hopkinson v. Ontario (Attorney General)

WRITTEN SUBMISSIONS

Denese Hopkinson, Applicant

Self-represented

Her Majesty the Queen in Right of Ontario as represented by the Ministry of the Attorney General, Debbie Dunn, Julie Weber, and Katarzyna Gierejkiewicz, Respondents

Felix Lau, Counsel

Introduction

1This Application filed on May 20, 2014, alleges discrimination with respect to employment because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). This Interim Decision deals with the issue of whether the Application should be deferred pending the completion of a related grievance proceeding.

2On September 2, 2014, the Tribunal sent the parties a Notice of Intent to Defer (the “Notice”), which indicated that it may be appropriate to defer the Application pending the resolution of the grievance. The Tribunal directed the parties to file by no later than 30 days after September 2, 2014 submissions regarding whether the Tribunal should defer the Application pending the completion of the grievance proceeding.

3On September 25, 2014, the applicant filed a letter in which she objected to deferral, noting that it could be six to eight months before the grievance arbitration is heard, and in the meantime she is suffering financial hardship and has no health benefits.

4The respondents filed their submissions on October 8, 2014. The respondents submitted that the applicant has four outstanding grievances and at least two of those, dated May 26 and June 24, 2014, respectively relate to the same facts and human rights issues as her Application to the Tribunal, namely the organizational respondent’s direction to the applicant to make up time she takes off for medical treatment, the organizational respondent’s alleged failure to comply with modified duties, the organizational respondent’s requests for medical documentation and the alleged differential treatment for singling the applicant out for closer supervision.

5The respondents noted that the parties held a formal resolution meeting on October 3, 2014. If the applicant’s grievances are not resolved in the grievance process they will proceed to a hearing before the Grievance Settlement Board, which is empowered to interpret and apply the Code. The organizational respondent submitted that allowing the Application to proceed prior to the conclusion of the grievance process would result in unnecessary duplication of proceedings and the possibility of inconsistent results and remedies.

decision and analysis

6The Application is deferred pending resolution of the outstanding grievance.

7The Tribunal may defer consideration of an application on such terms as it may determine, on its own initiative or at the request of a 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 whether deferral is the most fair, just and expeditious way of proceeding with the application.

8The Tribunal has generally deferred applications where there is an ongoing grievance under a collective agreement based on the same facts and human rights 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).

9The Supreme Court thus confirmed that human rights tribunals are not the only decision-makers that can decide human rights claims. Where the parties are 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.

10As stated in Melville v. Toronto (City), 2012 HRTO 22:

Deferral avoids two simultaneous proceedings that may result in conflicting determinations, ensures that the respondent need not be actively defending the same matter in two legal proceedings at the same time, and focuses the Tribunal’s limited resources on cases where it is the only process being pursued. In my view, it is consistent with the Tribunal’s mandate to interpret its rules in a fair, just and expeditious manner to defer a case when a grievance is ongoing, whether or not that grievance has yet been referred to arbitration. The grievance process is a stage in dispute resolution before the matter is referred to an independent third party, but that does not mean that there is no proceeding ongoing. Fairness supports avoiding the duplication of proceedings.

11In this case, it is apparent that there is substantial overlap between the facts and human rights issues covered by the Application and those referred to in the grievances. The matters are still live and the grievance process has not concluded. It is not yet apparent whether or not the applicant’s grievances will be referred to the Grievance Settlement Board. But if the applicant believes, on conclusion of the process, that her human rights issues have not been adequately addressed, she may ask to have her Application brought back on before the Tribunal.

12This will be the most expeditious way of proceeding. The fact that the grievance has not yet been referred to arbitration is not determinative of the issue in my view.

13The Application will therefore be deferred pending the completion of the grievance and arbitration process.

14The 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 and arbitration process.

order

15The Application is deferred pending the completion of the grievance and arbitration process.

16The 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 process.