Mercier v. Queen’s University, 2015 HRTO 1517

Human Rights Tribunal of Ontario

Between: Adèle Mercier, Applicant -and- Queen’s University, Respondent

Interim Decision

Adjudicator: Maureen Doyle Date: November 10, 2015 Citation: 2015 HRTO 1517 Indexed as: Mercier v. Queen’s University

Written Submissions

Adèle Mercier, Applicant Ron Ellis, Counsel

Queen’s University, Respondent D. Alan Whyte, Counsel

1This Interim Decision deals with the issue of whether the Application should be deferred pending the completion of a related grievance proceeding.

2The applicant indicates in the Application that the facts of the Application are part of a union grievance proceeding that is still in progress, and encloses a copy of the grievance filed on her behalf by her union, Queen’s University Faculty Association (the “union”).

3The applicant takes the position that the Application should not be deferred, though states that there will be “some overlapping facts” in each of the two proceedings. The applicant submits that if the arbitrator released a decision prior to the hearing of this Application, the applicant “would expect the Tribunal to rely on the issue estoppel doctrine and adopt the arbitrator’s findings” on facts which are not “distinguishable”. The applicant submits that a deferral order “will substantially delay” her opportunity to have her allegations of a poisoned work environment and reprisals heard and determined by the Tribunal, and will delay any remedy ordered. The applicant submits that it is “in the nature of the grievance/arbitration proceedings, and such associated judicial review applications that may ensue” that delay is of an “indeterminate length”, but that it could well result in a delay of one year or more to hearing the Application. Further, the applicant has more latterly submitted that though the grievance arbitration has begun, continuation dates are not yet scheduled.

4The respondent takes the position that the Application should be deferred, citing the factors considered by the Tribunal in Baghdasserians v. 674469 Ontario 2008 HRTO 404: the subject matter of the proceeding; the nature of the proceeding; the type of remedies sought; and whether it would be fair overall to the parties to defer.

5The 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. Absent good reason, applicants and respondents before the Tribunal are entitled to expect the Tribunal to take timely action to resolve complaints of discrimination brought before it.

6The 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).

7The Supreme Court thus confirmed that human rights tribunals are not the only decision-makers that can decide human rights claims. 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.

8In this case, the Application is the second filed by the applicant regarding, among other things, allegations of a poisoned work environment. The applicant has also filed grievances related to the allegations contained in her first Application, and consideration of that Application was deferred by the Tribunal, pending the completion of the grievance process, in Mercier v. Queen’s University 2013 HRTO 277.

9In the instant Application, the applicant alleges reprisal, including allegations of a continued poisoned work environment and removal from her office and temporary assignment to a new office in a different building. The allegations of a continued poisoned work environment contained in the narrative describe interactions with other employees of the University, including the individual respondents named in her first Application to the Tribunal. By way of remedy, she seeks financial compensation, including compensation for damages she alleges the University has caused to her “career, to her health, to her dignity, feelings and self-respect, and to her reputation”. She also seeks a declaration that the University has violated the Code, an order that the University return her to her original office, an order that the University take whatever steps are necessary to eliminate the “current climate of reprisal”, an order that the University grant her a two-year fully paid “recovery leave of absence” and an order that when she returns from the “recovery leave”, she be reinstated to her duties as a teacher of logic in the philosophy department, and that such duties be assigned on a reasonable basis and that she be provided with reasonable supports in respect of her duties and the number of students assigned to her. She also seeks public interest remedies.

10The remedies the applicant seeks in her grievance are a return to her office in the Philosophy Department, compensation for her “injury to health, reputation, dignity and disruption to the performance of her academic duties and her rights under the Collective Agreement” and an order that the University “abide by the Collective Agreement”.

11Though not identical, the remedies sought in the grievance and in the Application bear sufficiently close relationship to each other to indicate commonality of issues. Based on the remedies sought, I infer that even if not all of the identical allegations are raised in the grievance proceeding, the factual matrix in which these allegations arise is one which can be expected to form part of the evidence both in the grievance proceeding and the Tribunal Application. It is apparent, therefore, that there is substantial overlap between the facts and human rights issues covered by the Application and those referred to in the grievance.

12Tribunal stated that holding a matter in abeyance while another overlapping one takes place is a procedural step which is consistent with the Tribunal’s mandate. At paragraph 8 of Melville v. Toronto (City) 2012 HRTO 22 (“Melville”), the Tribunal stated:

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.

13In this case, the grievance has been referred to arbitration and at least one day of arbitration has taken place. The matter is still live and the grievance process has not concluded. In such circumstances, and for the reasons above, I find that it is appropriate to defer this Application pending the completion of the grievance process.

14I do note however, that the applicant indicates that there have been delays in scheduling continuation dates for the grievance arbitration and that the grievance process “still has not been resolved”. The parties are reminded that it is understood that various factors may affect the speed with which a matter moves through the grievance and arbitration process, but that in certain cases the Tribunal has re-activated an Application where the grievance proceedings appear to have been inactive (see the discussion at paragraphs 12 and 13 of Melville and see Law v. Organizational Solutions Inc. 2012 HRTO 1313).

15The 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.

16I am not seized.