HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Irene Petrunti Applicant
-and-
Her Majesty the Queen in Right of Ontario, as represented by the Ministry of Community and Social Services Respondent
INTERIM DECISION
Adjudicator: Naomi Overend Date: January 25, 2016 Citation: 2016 HRTO 108 Indexed as: Petrunti v. Ontario (Community and Social Services)
WRITTEN SUBMISSIONS
Irene Petrunti, Applicant Self-represented
Ontario (Community and Social Services), Respondent Susan Munn, Counsel
1This Interim Decision addresses whether this Application should be deferred pending the outcome of a related grievance arbitration proceeding.
2In her Application, the applicant alleged discrimination because of disability, association and reprisal sex contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). Specifically, the applicant alleges that she has been forced to work in a poisoned work environment and has been denied the chance to advance in her career.
3Prior to filing her Application, the applicant filed a grievance with her union, the Ontario Public Service Employees Union (“OPSEU”). The Tribunal directed the applicant to provide her grievance, which she did. The March 23, 2015 grievance provided raises all of the same allegations as the Application and references a violation of the applicant’s rights under the Code.
4The Tribunal sent a Notice of Intent to Defer on December 3, 2015 and asked the parties to provide submissions by no later than January 4, 2016. The respondent sent in written submissions supporting deferral. Thereafter, the applicant sent in written submissions opposing deferral and a request for a two-week extension to file further material. This was granted. The applicant continued to send in written submissions, concluding on January 18, 2016. The Tribunal has reviewed all of this material in reaching its decision on deferral.
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 any party (Rule 14.1 of the Tribunal’s Rules of Procedure). 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.
6The 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 a part of the collective agreement. See Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42. Thus, the Tribunal will generally defer an Application where there is an ongoing grievance under a collective agreement based on the same facts and issues.
7The applicant asserts that there are differences between her Application and her grievance. She states her grievance is about she has “been held back in her career” and “the Employer’s differential treatment” of her, “specifically the purposeful exclusion of [her] in the application for many recent positions.” The applicant submits that her Application is about how she has been “continually” “mininimized and humiliated.
8In fact, the grievance submitted by the applicant is broader and covers the applicant’s treatment at work, and the first allegation in her Application addresses her failure to advance in her career. As such, the Application and the grievance raise the same issues and allegations of harassment and discrimination. Due to the substantial overlap between the Application and the grievance, proceeding with the Application could lead to inconsistent decisions on the facts and/or issues raised in the Application and the grievance, especially in light of the fact that the applicant’s grievance has been referred to the Grievance Settlement Board, and the first day of hearing is scheduled for May 27, 2016.
9The applicant also submits that the Tribunal should not defer because the respondent is taking a “wait and see approach” even though she has filed the grievance. It would appear that the applicant is alleging that the respondent is continuting to engage in workplace harassment/discrimination, despite the fact that she has filed a grievance. Is not clear how forcing the parties to participate in this process concurrently with the grievance process will alleviate this alleged problem.
10To avoid the difficulties caused by overlap, I find it appropriate to defer consideration of the Application pending the conclusion of the grievance arbitration proceeding.
11If the applicant believes that the grievance arbitration proceeding did not appropriately deal with the substance of his Application, she may seek to re-activate her deferred Application. The 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 proceedings. It should be noted that, a party wishing to proceed with an Application must file a request to proceed no later than 60 days after the conclusion of the grievance arbitration proceeding.
order
12The Tribunal will defer consideration of the Application pending the conclusion of the grievance process of the March 23, 2015 grievance filed on behalf of the applicant by OPSEU.
Dated at Toronto, this 25th day of January, 2016.
“Signed By”
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Naomi Overend Vice-chair