Wendy Goring v. Her Majesty the Queen in Right of Ontario et al., 2015 HRTO 218

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Wendy Goring

Applicant

-and-

Her Majesty the Queen in Right of Ontario, as represented by the Minister of Community Safety and Correctional Services, David Hatt, Wendy Russell, Denise Scrivano, Tom O'Connell, Trevor Dunscombe and Kim Lengert

Respondents

INTERIM DECISION

Adjudicator: Brian Eyolfson

Date: February 18, 2015

Citation: 2015 HRTO 218

Indexed as: Goring v. Ontario (Community Safety and Correctional Services)

Introduction

1This Application was filed on April 3, 2014, and alleges discrimination with respect to employment because of race, sex, creed and association with a person identified by a ground listed in the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Application also alleges reprisal, or threat of reprisal, within the meaning of the Code.

2This Interim Decision addresses whether the Application should be deferred pending the completion of related union grievance proceedings.

3On December 15, 2014, the Tribunal sent the parties a Notice of Intent to Defer (the “Notice”), which indicated that it may be appropriate to defer the Application pending the resolution of another legal proceeding dealing with the subject-matter of the Application. The parties and the applicant’s union were invited to make submissions as to whether or not the Application should be deferred.

4The applicant and the respondents filed submissions. The respondents submitted that the Application should be deferred, while the applicant submitted that her union has not assisted her.

decision and analysis

5The 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.

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 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.

8As stated in Melville v. Toronto (City) 2012 HRTO 22:

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.

9In this case, it appears that there is a significant overlap between the facts and human rights issues covered by the Application, and those referred to in ongoing grievances filed on behalf of the applicant.

10According to the respondents’ submissions, the applicant has 11 active grievances. Ten of the grievances are dated between January 31 and December 31, 2014, and the respondents are unaware of the date of one of the grievances. I note that, while the Application was initially filed on April 3, 2014, it was incomplete at the time. The applicant provided further information, completing her Application, on November 5, 2014.

11According to the respondents, 4 of the applicant’s 11 grievances, the first dated January 31, 2014, and the next 3 dated April 28, 2014, contain the following allegations:

a. The respondent Ministry has the applicant off on sick leave without pay, whereas she if off due to the Ministry’s failure to accommodate a doctor’s note;

b. Harassment/reprisal in terms of doctor’s notes being disregarded, in relation to a human rights submission and “WDHP” investigation;

c. Reprisal with respect to doctor’s notes being ignored, and being threatened with abandonment of her post; and,

d. The WDHP process being biased and flawed.

12The grievance with an unknown date also alleges that the Ministry did not accommodate the applicant in accordance with a doctor’s note, and 3 grievances, dated December 31, 2014, allege discrimination in terms of the Ministry withholding pay through unapproved deductions.

13Three other grievances concerning “Management Rights”, dated July 9, July 10 and August 18, 2014, deal with a leave of absence, pay, and discrimination regarding health and safety, respectively.

14Despite the lack of specificity in the grievances, the grievances referred to above appear to overlap substantially with the allegations in the Application. For example, the applicant alleges in her Application that she witnessed racism towards others, and that she was subjected to reprisal and harassment for “standing up” against racism in the workplace. In particular, she refers to the effect on her health, and multiple doctor’s notes being ignored by her employer. While the applicant did not specifically cite disability as a ground of discrimination in Form 1 of the Application, she alleges elsewhere in the Application (Form 1-A) that she was also subjected to discrimination on the basis of disability in terms of her doctor’s notes not being accommodated.

15In the applicant’s further information dated November 5, 2014, she also states that she has been subjected to reprisal in the last year in the form of no pay, and that her managers’ actions have made her very ill.

16The allegations in the Application, and those in the grievances, also appear to relate to the same time period. While it is not clear if any of the grievances are actually scheduled for arbitration, according to the respondents’ January 14, 2015 submissions, 5 of the grievances are on a list to be dealt with through “Mediation/Arbitration”.

17In the circumstances, I find that it is appropriate that the Application be deferred, pending conclusion of the grievance process concerning the grievances referred to above. If the applicant believes, on conclusion of the grievance process, that her human rights issues have not been adequately addressed, she may ask to have her Application brought back on before the Tribunal (“reactivation”).

18The 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.

order

19The Application is deferred pending the completion of the grievance process.

20The 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. In particular, the parties attention is drawn to the time limit in Rule 14.4, which states, “Where an Application was deferred pending the outcome of another legal proceeding, a request to proceed under Rule 14.3 must be filed no later than 60 days after the conclusion of the other proceeding, must set out the date the other legal proceeding concluded and include a copy of the decision or order in the other proceeding, if any” [emphasis added].