Jones v. Ontario (Community Safety and Correctional Services), 2015 HRTO 834

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Stephen Jones

Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Ministry of Community Safety and Correctional Services

Respondent

INTERIM DECISION

Adjudicator: Eli Fellman

Date: June 22, 2015

Citation: 2015 HRTO 834

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

WRITTEN SUBMISSIONS

Stephen Jones, Applicant

Self-represented

Her Majesty the Queen in Right of Ontario as represented by the Ministry of Community Safety and Correctional Services, Respondent

Peter Dailleboust, Counsel

Introduction

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 in employment on the ground 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 is a non-unionized member of the Ontario Public Service. He filed a grievance pursuant to the Public Service of Ontario Act, 2006, S.O. 2006, c. 35, Sch. A, as amended, alleging harassment and verbal and physical abuse in his workplace. The grievance has been referred to arbitration and will be dealt with by the Public Service Grievance Board (“PSGB”). An arbitration date of November 9, 2015 has been scheduled.

3The Tribunal issued a Notice of Intent to Defer (“NOID”) under Rule 14.2 of its Rules of Procedure on May 14, 2015, asking the parties for submissions on whether the Application should be deferred pending the outcome of the ongoing grievance. Both parties provided submissions.

Position of the parties on deferral

4The applicant is opposed to deferral, indicating that the grievance does not address his disability or the requirements of his employer to accommodate his disability during its investigation of his harassment and abuse complaint. The applicant asserts that this resulted in a very inaccurate and damaging investigative report into his claim.

5The respondent supports deferral on the basis the subject matter of the Application and the complaint are identical.

DECISION

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.

7While deferral is not automatic, it is granted to avoid adjudicative duplication. Deferral of an application ensures that proceedings dealing with the same issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law. The Tribunal has held that some of the factors that may be relevant in deciding whether to defer consideration of an application are the subject matter of the other proceeding, the nature of the other proceeding, the type of remedies available in the other proceeding, and whether it would be fair overall to the parties to defer, having regard to the status of each proceeding and the steps that have been taken to pursue them. See Christianson v. College of Physicians and Surgeons, 2009 HRTO 438, Groves v. Ontario (Community Safety and Correctional Services), 2010 HRTO 1779, and Gordon v. Leisureworld Caregiving Centre, 2011 HRTO 577.

8The Tribunal has generally deferred applications where there is an ongoing grievance under the Public Service of Ontario Act based on the same facts. See Achampong v. Ontario (Government Services), 2011 HRTO 1417, and Lipke v. Ontario (Community Safety and Correctional Services), 2008 HRTO 285. 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 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.

9The Tribunal finds it appropriate to defer this Application pending the completion of the PSOA grievance process. There appears to be substantial overlap between the facts covered by the Application and those referred to in the applicant’s grievance. The grievance concerns allegations that the applicant was subject to harassment and verbal and physical abuse by a supervisor. The Application alleges that the respondent did not accommodate the applicant’s disability during the investigation of the complaints contained in the grievance. Thus, the factual foundation for both the PSOA grievance process and the Application is the alleged harassment and abuse experienced by the applicant and the respondent’s response to the applicant’s complaints.

10The PSOA grievance was initiated before filing this Application and the process has not yet concluded.

11There may be issues in the Application that go beyond those that might be considered by the PSGB. However, given the considerable factual overlap between the two proceedings and the potential that the PSGB hearing will determine some issues that have a direct bearing upon the Application, the rational and orderly litigation of the various issues between the parties favours deferral. See O’Brien v. Burlington (City), 2009 HRTO 1818, Chau v. Workright, 2011 HRTO 598, and Colella v. Toronto Catholic District School Board, 2011 HRTO 1289.

12The Application will therefore be deferred pending the completion of the grievance process. If the applicant believes, on conclusion of the process, that his human rights issues have not been adequately addressed, he may ask to have his Application brought back on before the Tribunal.

13The 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.