Pollak v. Ontario (Attorney General), 2014 HRTO 245

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Deborah Pollak

Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Ministry of the Attorney General

Respondent

INTERIM DECISION

Adjudicator: Dawn J. Kershaw

Date: February 21, 2014

Citation: 2014 HRTO 245

Indexed as: Pollak v. Ontario (Attorney General)

WRITTEN SUBMISSIONS

Deborah Pollak, Applicant

Self-represented

Her Majesty the Queen in Right of Ontario as represented by the Ministry of the Attorney General, Respondent

Kevin Dorgan, Counsel

Introduction

1This Application 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”).

2The applicant requests that this Application be deferred because she has an outstanding grievance and the respondent agrees with the applicant’s request.

decision and analysis

3The Application is deferred pending resolution of the outstanding grievance.

4The 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.

5Some factors that have been considered in deciding whether to defer are: the subject matter of the other proceeding; the nature of the other proceeding; the types of remedies available in the other proceeding; and whether it would be fair overall to the parties to defer, having regard to the status of each proceeding and the steps that have been taken to pursue them. See Baghdasserians v. 674469 Ontario, 2008 HRTO 404.

6As stated in Melville v. Toronto (City), 2012 HRTO 22 at para 8:

(…) 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.

7The grievance alleges Code violations and arises out of the same factual circumstances as this Application.

8Since the issues in the Application and the grievance overlap, proceeding with the Application at the Tribunal could very well lead to inconsistent decisions on the facts and/or legal issues raised in the Application and the grievance. The primary purpose of deferring an application is to avoid such potential inconsistency.

9I find that, in all of the circumstances, deferring the Application is appropriate. It will be the most fair and just way of proceeding.

order

10The Application is deferred pending the completion of the grievance and arbitration process.

11The 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 process.