Debra Mattingly v. Ministry of Community Safety and Correctional Services, 2015 HRTO 21

Human Rights Tribunal of Ontario

B E T W E E N:

Debra Mattingly Applicant

-and-

Ministry of Community Safety and Correctional Services Respondent

INTERIM DECISION

Adjudicator: Alison Renton Date: January 7, 2015 Citation: 2015 HRTO 21 Indexed as: Mattingly v. Ontario (Community Safety and Correctional Services)

WRITTEN SUBMISSIONS

Debra Mattingly, Applicant Self-represented

Ministry of Community Safety and Correctional Services, Respondent Caroline Cohen, Counsel

1This is an Application filed on September 22, 2014 under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination in employment because of disability. 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. She filed copies of two grievances that were filed on her behalf by her union OPSEU (the “union”), one from February 2011 and the other from May 2014.

3The Tribunal issued a Notice of Tribunal Intent to Defer (“the Notice”) on October 29, 2014, seeking submissions from the parties and the union about whether it would be appropriate to defer the consideration of the Application pending the resolution of the grievance procedure. The Tribunal directed the parties and the union to file submissions addressing this issue and stated that the respondent was not required, at this point, to file a Response. The applicant and the respondent filed submissions. The union has not and the time for doing so has elapsed.

4The applicant opposes deferral. She submits that the allegations in her Application and her grievance are different and there will be no significant crossover with the findings between the tribunals. Timeliness, she also submits, is very important given the disability she has identified in her Application. The grievance arbitration process will be a long and arduous process until its completion and the Tribunal is supposed to provide timely service. Deferring her Application will add more time onto her situation, will enhance her victimization, worsen her disability, and permit the respondent to continue to abuse its victims and avoid justice. By deferring, she alleges that the Tribunal will “transition from being a neutral, productive process to an impairment of my ability to heal from this disorder and become part of the abuse I have faced over the years by my previous employer”. She views deferral as being a punishment by making her suffer and preventing her recovery, which has an impact on her ability to find employment.

5The respondent submits that deferral is appropriate in these circumstances. The May 2014 grievance, which alleges a violation of the anti-harassment clause of the collective agreement, pertains to the applicant’s termination and hearing dates are scheduled between May and September 2015. A Grievance Settlement Board arbitrator has the jurisdiction to interpret and apply employment-related statutes, including the Code. Furthermore, the May 2014 grievance raises a number of issues that pertain to the allegations in the Application. While the 2011 grievance has never been referred to arbitration and the respondent considers it abandoned, the issues in the 2011 grievance are being raised by the union in relation to the May 2014 grievance.

ANALYSIS

6The 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.

7The 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. See Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42.

8The 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.

9In 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, particularly the May 2014 grievance. The matter is still live, the grievance process has not concluded and a number of arbitration dates are scheduled. In the Tribunal’s process, the respondent has not yet filed a Response. Even if the respondent had already filed a Response, the Tribunal is scheduling hearing dates June 2015 and beyond, which is after some of the arbitration dates already scheduled before the Grievance Settlement Board.

10Accordingly, it is appropriate to defer the Application pending conclusion of the arbitration process.

11If 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.

12The Tribunal directs the parties’ attention to Rules 14.3 and 14.4 of the Tribunal’s Rules of Procedure which outline the procedure by which the Application may be brought back on after the conclusion of the grievance process. In particular, the parties’ attention is drawn to Rule 14.4 which requires that a request to re-activate a deferred Application must be filed no later than 60 days after the conclusion of the other proceeding.

13I am not seized with this matter.