HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Joan Marshall-Wilkinson
Applicant
-and-
Her Majesty the Queen in Right of Ontario as represented by the Minister of Community Safety and Correctional Services (Toronto Jail)
Respondent
-and-
Ontario Public Service Employees union, Local 530
Affected Party
INTERIM DECISION
Adjudicator: David Muir
Indexed as: Marshall-Wilkinson v. Ontario (Community Safety and Correctional Services)
1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of race, colour, ancestry, place of origin and ethnic origin.
2This case is scheduled for hearing on July 27 and 28, 2015. The applicant has filed a Request for Order During Proceedings (Request) seeking the deferral of this Application pending the conclusion of a grievance proceeding recently initiated by the applicant’s bargaining agent on her behalf.
3The applicant provides no reasons for her Request but asked that the issue be addressed in an oral hearing.
4The respondent opposes the Request arguing that the issues raised in the grievance are different than the issues remaining in this Application.
5This issue is appropriately dealt with in writing. In my view the Request should not be granted as it is plain and obvious that the issues remaining in this Application are not included in the grievance initiated by the applicant’s bargaining agent.
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.
7The Tribunal has generally deferred applications where there is an ongoing grievance under a collective agreement based on the same facts. 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). However in this case there appears to be no overlap in the issues in dispute.
8In Interim Decision 2014 HRTO 1154 issued on July 31, 2014 a number of the allegations made by the applicant were dismissed pursuant to section 45.1 of the Code. The Tribunal did conclude that reprisal allegations made by the applicant should proceed to the next stage of the process. The Tribunal described the remaining allegations as follows at para 31:
The reprisal allegations outlined in the applicant’s Reply pertain to events in January of 2014, when the applicant began working at the Toronto South Detention Centre. She alleges that the condition of the office she was assigned to and the equipment she was given reflect an intent by the respondent to retaliate because she asserted her Code rights through the grievance process. These allegations were not addressed through the grievance process and allegedly occurred shortly after the filing of her Application. As a result they are neither barred by s.45.1 nor by delay and can proceed in the Tribunal’s process.
9The grievance on the other hand concerns an allegation of systemic discrimination in particular the failure on the part of the respondent to take proactive steps to redress alleged “patterns of behaviour, policies or practices that are part of the structure of the Ministry”. The applicant alleges that these failures have created and perpetuated disadvantage for the applicant as a racialized person.
10In my view it is not appropriate to defer this Application.
11I am not seized of this case. .
Dated at Toronto, this 17th day of April, 2015.
“signed by”
David Muir
Vice-chair