Pastien v. Ontario (Community Safety and Correctional Services), 2015 HRTO 722

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Marcella Pastien Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Ministry of Community Safety and Correctional Services/Quinte Detention Centre Respondent

INTERIM DECISION

Adjudicator: Dawn J. Kershaw Date: June 02, 2015 Citation: 2015 HRTO 722 Indexed as: Pastien v. Ontario (Community Safety and Correctional Services)

WRITTEN SUBMISSIONS

Marcella Pastien, Applicant Self-represented

Her Majesty the Queen in Right of Ontario as represented by the Ministry of Community Safety and Correctional Services/Quinte Detention Centre, Respondent Chris Donszelmann, Counsel

Introduction

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 family status. 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 not part of another proceeding that is still in progress, but also states she is a member of the Ontario Public Service Employees Union (“OPSEU”) and that a union grievance has been filed. The applicant filed a copy of the January 8, 2015 grievance, and alleges it is about a poisoned work environment and not family status.

3The Tribunal issued a Notice of Tribunal Intent to Defer (“the Notice”) on April 23, 2015, seeking submissions from the parties 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 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.

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. She submits that she filed the grievance as a result of hiring strategies used by senior management that violate protocols set out in the collective agreement. She argues the grievance is about tactics used to influence her decision to go out of town. She states that although she stated she had childcare issues and concerns and requested not to go out of town, it was not the reason she submitted the grievance.

5She further submits she had no knowledge of bringing a human rights complaint until more than three weeks after she filed her grievance. She submits that in the Stage 2 hearing, she provided examples that included escorts being assigned based on operational needs and managerial authority, and that the HRPO protocol was not followed and was called a guideline.

6The respondent submits deferral is appropriate because there is clear overlap between the allegations in the grievance and in the Application. The respondent submits that the parties in the Stage 2 hearing held on February 18, 2015 discussed the exact issue that is the subject of this Application.

7The respondent provides a copy of the March 2, 2015 letter resulting from the Stage 2 grievance meeting in which it recaps what was discussed at the Stage 2 grievance meeting. The March 2, 2015 letter summarizes the applicant’s grievance as follows:

I grieve being ordered to perform a bailiff escort on Friday January 2, 2015. HPRO protocol was not followed. I feel I was bullied and intimidated under bill 168 and any other legislation that may apply. I feel this is contributing to a poisoned work environment.

8The letter further states that the applicant advised she spoke to a sergeant and said she could not go on escort because she had sick children at home; she was directed to submit a report as to why she was refusing; and she was requested again to go and again stated she had sick children at home. The letter further states the applicant discussed her daughter’s hospitalization in 2014 and was asked if she had any accommodation in place. She advised she did not because the respondent had been decent.

9The respondent submits the applicant does not specify in her grievance which articles of the collective agreement she is alleging were violated, but the respondent notes that Article 3 of the collective agreement is an anti-discrimination and anti-harassment clause. The respondent further alleges that if the applicant was solely grieving that the protocol was not followed, she could have done this without referring as she did to Bill 168 and any other legislation that may apply.

ANALYSIS

10The 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.

11The 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.

12The 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.

13As 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.

14In 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 grievance. While the applicant has alleged the issues are different, they arise out of the same set of circumstances; and the human rights and accommodation issue with respect to family status was raised in the Stage 2 hearing with respect to the applicant’s children’s illnesses. The matter is still live as the grievance process has not concluded. In the Tribunal’s process, the respondent has not yet filed a Response.

15It is appropriate to defer the Application pending conclusion of the arbitration process.

16If 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.

17The 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.

18I am not seized with this matter.