Ashamock v. Weeneebayko Area Health Authority, 2016 HRTO 1259

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jennifer Ashamock

Applicant

-and-

Weeneebayko Area Health Authority

Respondent

INTERIM DECISION

Adjudicator: Dawn J. Kershaw

Date: September 27, 2016

Citation: 2016 HRTO 1259

Indexed as: Ashamock v. Weeneebayko Area Health Authority

WRITTEN SUBMISSIONS

Jennifer Ashamock, Applicant

Debbie St. Germain, Representative

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”). 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 part of union grievance proceedings that are still in progress, and encloses a copy of the grievances filed on the applicant’s behalf by the applicant’s union, Public Service Alliance of Canada (the “union”).

3In response to the Tribunal’s August 12, 2016 Notice of Intent to Defer, the applicant advised by e-mail, dated September 8, 2016, that she did not object to deferral of the Application. The respondent filed no submissions.

4The 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.

5The 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).

6The 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.

7In this case, the applicant consents, the respondent takes no position and 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. The matter is still live and the grievance process has not concluded. If the applicant believes, on conclusion of the process, that her human rights issues have not been adequately addressed, she may ask to have her Application brought back on before the Tribunal.

8The Application will therefore be deferred pending the completion of the grievance process.

9The 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. Where a party wishes to proceed with an Application which has been deferred, the party must file a Request for an Order During Proceedings (Form 10) within 60 days after the conclusion of the other proceeding. The Tribunal’s Rules of Procedure and Forms can be found on its website at www.sjto.gov.on.ca/hrto/.