Graham v. Ontario (Attorney General), 2016 HRTO 1095

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Carla Graham

Applicant

-and-

Her Majesty the Queen as represented by the Ministry of the Attorney General

Respondent

INTERIM DECISION

Adjudicator: Douglas Sanderson

Date: August 16, 2016

Citation: 2016 HRTO 1095

Indexed as: Graham v. Ontario (Attorney General)

WRITTEN SUBMISSIONS

Carla Graham, Applicant

Self-represented

Her Majesty the Queen as represented by the Ministry of the Attorney General, Respondent

Caroline Cohen, Counsel

1This is an Application filed on April 26, 2016 under s. 34 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, place of origin, ethnic origin and reprisal. This Interim Decision deals with the issue of whether the Application should be deferred pending the completion of related grievance proceedings.

2The applicant alleges that the respondent assigned supervisory duties in a discriminatory manner and also communicated with the applicant in a discriminatory manner through e-mail. The applicant also alleges that the respondent committed reprisals against her because she has attempted to exercise her rights under the collective agreement and because she is attempting to advance herself in the respondent’s organization. On May 18, 2016, the Tribunal sent the parties a Notice of Intent to Defer (the “Notice”), which indicated that it may be appropriate to defer the Application pending the resolution of grievances the applicant filed under the collective agreement between the respondent and the applicant’s trade union. The Tribunal directed the parties to file submissions regarding whether the Tribunal should defer the grievances.

3In response to the Notice, the applicant submitted a Request for an Order During Proceedings on June 1, 2016. The applicant requested that the Tribunal proceed with her reprisal allegations because these allegations shall not be addressed in the grievance process.

4The respondent filed submissions in response to the Notice on June 22, 2016. The respondent submitted that the applicant has filed two grievances through her union, OPSEU, raising precisely the same facts and issues as those raised in this Application. The respondent submits that the issue of reprisal is an issue in the applicant’s second grievance. The respondent submitted that the applicant has grieved under the anti-discrimination clause of the collective agreement and requests the same remedies as are sought in the Application. The respondent submitted that OPSEU referred the grievances to the Grievance Settlement Board on April 6, 2016. The respondent expects that a Vice-Chair will soon be appointed and a hearing date set.

5The organizational respondent noted that if the applicant’s grievance is not resolved in the grievance process it will proceed to a hearing before the Grievance Settlement Board, which is empowered to interpret and apply the Code. The organizational respondent also noted that the grievance process was engaged before the applicant filed this Application and submitted that the orderly administration of justice favours deferral to the grievance process. The organizational respondent submitted that allowing the Application to proceed prior to the conclusion of the grievance process would result in unnecessary duplication of proceedings and the possibility of inconsistent results and remedies.

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.

7The 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 (Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42).

8The 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.

9In 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. It appears that the applicant’s grievances have been referred to the Grievance Settlement Board and are therefore at a more advanced stage of proceeding than this Application. Assuming the issue of reprisal shall not be dealt with in the grievance/arbitration process, the Tribunal cannot proceed with only one aspect of an Application. In my view, there is no reason to depart from the Tribunal’s usual practice of deferring to related grievance proceedings. If the applicant believes, on conclusion of the process, that her human rights issues have not been adequately addressed, she may ask to have the Application brought back on before the Tribunal.

10The Application will therefore be deferred pending the completion of the grievance process.

11The 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.