Aryee v. Centre for Addiction and Mental Health, 2015 HRTO 1549

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Edna Aryee

Applicant

-and-

Centre for Addiction and Mental Health and Tanya Connors

Respondents

INTERIM DECISION

Adjudicator: Ken Bhattacharjee

Date: November 16, 2015

Citation: 2015 HRTO 1549

Indexed as: Aryee v. Centre for Addiction and Mental Health

WRITTEN SUBMISSIONS

Edna Aryee, Applicant

Self-represented

Centre for Addiction and Mental Health, Respondent

Daryn M. Jeffries, Counsel

1The purpose of this Interim Decision is to decide whether the Tribunal should defer consideration of the Application pending the conclusion of a grievance proceeding.

2The applicant is employed by the Centre for Addiction and Mental Health, and is a member of the Ontario Public Service Employees Union, Local 500 (the “union”).

3In October 2014 and February 2015, the union filed grievances on the applicant’s behalf, which alleged, among other things, that her employer had subjected her to discrimination. Two of the grievances have been referred to arbitration.

4On July 24, 2015, the applicant filed an Application with this Tribunal under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), which alleged that the respondents discriminated against her with respect to employment.

5On September 9, 2015, the Tribunal’s Registrar issued a Notice of Intent to Defer, which requested written submissions from the parties and the union on the issue of whether it is appropriate for the Tribunal to defer consideration of the Application pending the resolution of another legal proceeding (a union grievance) dealing with the subject-matter of the Application. The applicant and the Centre for Addiction and Mental Health filed submissions.

6Section 45 of the Code provides that the Tribunal may defer an Application in accordance with the Tribunal’s Rules. Rule 14.1 of the Tribunal’s Rules of Procedure provides that the 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. The Tribunal will consider, in light of the particular circumstances of each case, whether deferral is the most fair, just and expeditious way of proceeding with the Application.

7In Baghdasserians v. 674469 Ontario, 2008 HRTO 404, the Tribunal made the following general comments about deferral at paras. 18-19:

Deferral of an application ensures that proceedings dealing with the same issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law. However, deferral is not automatically invoked simply because the parties are involved in other legal proceedings.

Some of the factors that may be relevant in deciding whether to defer consideration of an application before the Tribunal are the subject matter of the other proceeding, the nature of the other proceeding, the type 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.

8The Supreme Court of Canada has confirmed that human rights tribunals are not the only decision-makers that can decide human rights claims. See Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42. 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. See Tekes v. Markham (Town), 2009 HRTO 1665 at para. 7.

9In her submissions, the applicant stated that her Application should not be deferred because she believes that the process before this Tribunal will provide a more uncompromising and unbiased resolution of her case. However, she did not address any of the factors, which were identified in Baghdasserians, above, which may be relevant in deciding whether or not to defer the Application, and there is no evidence that she has taken steps to withdraw her grievances. In essence, she wants the grievance proceeding and the proceeding before this Tribunal to be running concurrently, which raises the possibility of inconsistent decisions on facts or law.

10In my view, deferral is the most fair, just and expeditious way of proceeding with the Application. There is no dispute between the parties that the grievances were filed before the human rights Application was filed, the subject matter of the grievances and the Application are the same, the grievances have been referred to arbitration, and the arbitrator has the authority to interpret and apply the Code. These factors all weigh in favour of deferral.

11In my view, the applicant has not identified a compelling circumstance which would cause the Tribunal to depart from its normal approach. Accordingly, the Tribunal orders the deferral of the Application pending the conclusion of the grievance proceeding.

12Pursuant to Rules 14.3 and 14.4 of the Tribunal’s Rules, where a party wishes to proceed with an Application which has been deferred, the party must file a Request for an Order During Proceedings (Form 10) within 60 days after the conclusion of the other proceeding. The Tribunal’s Rules and Forms can be found on its website.

13I am not seized of this matter.