HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Savita Sharma
Applicant
-and-
Her Majesty the Queen in right of Ontario as represented by the
Minister of Community Safety and Correctional Services
Respondent
INTERIM DECISION
Adjudicator: Josée Bouchard
Indexed as: Sharma v. Ontario (Community Safety and Correctional Services)
WRITTEN SUBMISSIONS
Savita Sharma, Applicant
Self-represented
Her Majesty the Queen in right of Ontario as represented by the Minister of Community Safety and Correctional Services, Respondent
Tina Earl, Counsel
Introduction
1This is an Application filed on July 21, 2016, 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.
Request to defer
2On October 13, 2016, the respondent filed its Response, which includes a request to defer the Application pursuant to section 45 of the Code and Rule 14 of the Tribunal’s Rules of Procedure. The respondent submits that the applicant filed three grievances, the first on July 31, 2015, and the second and third on May 3, 2016 (file numbers 2016-0213, 2016-0813 and 2016-0814). On August 12, 2016, the Grievance Settlement Board (“GSB”) advised the respondent that the three grievances had been received and were at Stage 2, awaiting hearings. The respondent filed copies of the grievances with its Response.
3The respondent notes that the grievances were filed before the Application and the issues for each of the grievances are described as including “discipline, discrimination and management rights”. The respondent argues that the allegations in the grievances are similar to the allegations in the Application: that the employer violated the Workplace Discrimination and Harassment Policy with regard to equitable treatment of employees. The respondent further argues that the GSB has the authority and capacity to address the allegations of Code violations, and to provide an appropriate remedy.
4On October 30, 2016, the applicant filed a Reply to the Response opposing the request to defer. She argues that the Application alleges discrimination based on mental disability while the grievances deal with her unjust suspension. She also maintains that her first grievance, which is dated July 31, 2015, and was sent to the Ontario Public Service Employees Union (“the union”) within 30 days of her suspension, was only filed by the union on April 22, 2016. The applicant is concerned that the GSB could dismiss the grievance because it was not filed within 30 days of the alleged incidents.
Analysis and Decision
5The Tribunal may defer consideration of an application, on such terms as it may determine, and on its own initiative (Rule 14.1 of the Tribunal’s Rules of Procedure). 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. See 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, the grievances were filed before the Application 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 grievances. The grievance process is still live and the applicant’s grievances have been formally referred to arbitration. However, if the applicant believes, on conclusion of the arbitration process, that her human rights issues have not been adequately addressed, she may ask to have her 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. 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/.
order
11The respondent’s request to defer the Application pending the completion of the grievance/arbitration process is granted.
12I am not seized.
Dated at Toronto, this 14th day of November, 2016.
“Signed by”
Josée Bouchard
Vice-chair