Power v. Liquor Control Board of Ontario, 2016 HRTO 1380

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Marion Power

Applicant

-and-

Liquor Control Board of Ontario

Respondents

INTERIM DECISION

Adjudicator: Douglas Sanderson

Date: October 25, 2016

Citation: 2016 HRTO 1380

Indexed as: Power v. Liquor Control Board of Ontario

WRITTEN SUBMISSIONS

Marion Power, Applicant

Self-represented

Liquor Control Board of Ontario, Respondent

Andrew Cogswell, Counsel

1This is an Application filed on October 20, 2010 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 disability and family status. This Interim Decision deals with the issue of whether the Application should be deferred pending the completion of related grievance proceedings.

2The applicant identifies herself as a single grandparent who has custody of three of her grandchildren. The narrative to the Application describes a dispute with the respondent, her employer, regarding assigning her to the day shift to accommodate her family responsibilities. The applicant also indicates that she suffered injuries in a workplace accident that limit the roles that she can perform at work. The respondent filed a Response in which it denies any violation of the Applicant’s Code rights, but also requested deferral of the Application pending the completion of a related grievance filed on her behalf by the applicant’s trade union. The applicant filed a Reply in which she opposed deferral.

3The respondent submitted that the applicant’s union filed a grievance on her behalf on February 6, 2014 alleging that the respondent failed to assign the applicant to a permanent clerical position. The respondent submitted that the issue of the applicant’s work assignment is also an issue in this Application and that there is significant overlap between the two proceedings. The grievance has been referred to Stage 3 in the grievance process, which is the last step before the matter is referred to arbitration.

4In her Reply, the applicant stated that she believed that the grievance/arbitration process would not address all of her human rights concerns.

Decsion

5The 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.

6The 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).

7The 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.

8In 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 grievances. While the issues in the two proceedings are not the same in all respects, there is potential for inconsistent rulings with respect to the facts and legal issues arising in the proceedings if the matters proceed concurrently. The grievance proceeding also appears to be at a more advanced stage than this Application. In the circumstances, I see no reason to deviate from the Tribunal’s normal practice of deferring to grievance/arbitration proceedings. If the applicant believes, on conclusion of the grievance/arbitration process, that her human rights issues have not been adequately addressed, she may ask to have his Application brought back on before the Tribunal.

9The Application will therefore be deferred pending the completion of the grievance process.

10The 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.

11I am not seized.