Murchison v. Ontario (Community Safety and Correctional Services), 2015 HRTO 200

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Heather Murchison Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Minister of Community Safety and Correctional Services Respondent

INTERIM DECISION

Adjudicator: Jennifer Scott Date: February 12, 2015 Citation: 2015 HRTO 200 Indexed as: Murchison v. Ontario (Community Safety and Correctional Services)

1This is an Application filed on November 17, 2014 under section 34 of Part IV of 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.

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, the Ontario Public Service Employees Union.

3The applicant opposes deferral of the Application. She submits the grievance will not deal with the substance of the Application, that she will be prejudice because of delay (the grievance has not been scheduled for Arbitration), and the harassment and discrimination are ongoing. The respondent supports deferral. It submits the applicant filed eight grievances that are currently active and are scheduled to proceed to Arbitration, although a date has not been scheduled. The respondent submits the applicant is alleging discrimination and/or harassment in these grievances during the same time period covered in the Application, either expressly or by reference to the article in the collective agreement which prohibits discrimination and harassment.

4The 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.

5The 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).

6The 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.

7In 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. I am satisfied that the concerns the applicant raises do not justify a departure from the Tribunal’s normal approach. The matter is still live and the grievance process has not concluded. If the applicant believes, on conclusion of that process, that her human rights issues have not been adequately addressed, she may ask to have her Application brought back on before the Tribunal.

8The Application will therefore be deferred pending the completion of the grievance process.

9The 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.