HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Taunya Stevens-Daugharty Applicant
-and-
Her Majesty the Queen in Right of Ontario as represented by the Minister of Children and Youth Services Respondent
INTERIM DECISION
Adjudicator: Paul Aterman
Date: January 21, 2015
Citation: 2015 HRTO 83
Indexed as: Stevens-Daugharty v. Ontario (Children and Youth Services)
WRITTEN SUBMISSIONS
Taunya Stevens-Daugharty, Applicant Self-represented
Her Majesty the Queen in Right of Ontario as represented by the Minister of Children and Youth Services, Respondent Kevin Dorgan, Counsel
1Consideration of this Application, which alleges discrimination with respect to employment because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), will be deferred until the completion of a pending arbitration hearing. The reasons below explain why.
2The applicant works for the respondent. She suffered a motor vehicle accident in 2005 which caused her significant injuries. She was in the course of her employment at the time of the accident and this led to her being entitled to benefits under the Workplace Safety and Insurance Act, 1997, S.O. 1997, c.16 (“the Act”).
3As a result of her entitlement to benefits under the Act and the working arrangements that were established for her after the accident, the applicant was simultaneously receiving benefits and being paid a salary. She alleges that there has long been a pattern of incorrect payment of her salary by the respondent and that this is discriminatory. This, in summary, is the basis of her Application.
4A grievance launched by her union that deals with the same issues is pending before the Grievance Settlement Board (“GSB”). As an attempt at mediation of the grievance failed, it is now scheduled to be arbitrated by the GSB in April of 2015.
5The Tribunal has asked for submissions on whether consideration of the Application should be deferred pending resolution of the grievance. The applicant says no, because the respondent has not addressed “…human rights, discrimination nor any compensation”. The respondent requests deferral on the grounds that the subject matter of the Application is identical to the issues in the grievance and the GSB has jurisdiction to address any Code violations.
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 allegations of discrimination brought before it.
7In 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).
8As a result, where there is a pending grievance and there is an overlap of facts and issues between the pending grievance and the Application before the Tribunal, the normal practice of the Tribunal is to defer considering the Application.
9In this case there is a significant overlap of facts and issues. The Application and the grievance are about the same issues and similar remedies are sought in both proceedings. The grievance is proceeding to arbitration and will be heard shortly, the GSB has the authority to address any Code violation and the applicant has not put forward a reason to depart from the Tribunal’s normal practice. In these circumstances I determine that it is appropriate to defer consideration of this Application until the arbitration concludes.
order
10Consideration of the Application will be deferred until the pending grievance is resolved. Where a party wishes to proceed with an application which has been deferred, the party must make a Request for an Order During Proceedings in accordance with Rule 19 within 60 days after the conclusion of the other proceeding (Rules 14.3 and 14.4).
Dated at Toronto, this 21st day of January, 2015.
”Signed by”__________________________
Paul Aterman
Vice-chair