Lupiani v. Ontario (Ministry of Transportation), 2016 HRTO 1631

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Nancy Lupiani Applicant

-and-

Her Majesty the Queen in Right of Ontario, as represented by the Minister of Transportation Respondent

A N D B E T W E E N:

Nancy Lupiani Applicant

-and-

Her Majesty the Queen in Right of Ontario, as represented by the Minister of Transportation, Brent Swain, and Jabeen Khan Respondents

INTERIM DECISION

Adjudicator: Bruce Best Date: December 19, 2016 Citation: 2016 HRTO 1631 Indexed as: Lupiani v. Ontario (Ministry of Transportation)

WRITTEN SUBMISSIONS

Nancy Lupiani, Applicant Self-represented

Her Majesty the Queen in Right of Ontario, as represented by the Minister of Transportation, Brent Swain, and Jabeen Khan, Respondents Susan Munn, Counsel

Ontario Public Service Employees Union, Affected Party Hilary Cook, Counsel

Introduction

1The Applicant has filed two Applications with the Tribunal. File number 2015-21458-I (the “first Application”) was filed on July 23, 2015, and was deferred pending the resolution of several related grievances. The applicant has apparently filed a number of further grievances since that Application was filed.

2In July 2016, the applicant was advised by her union, Ontario Public Sector Employees’ Union, that her grievances were being referred to arbitration at the Grievance Settlement Board (“GSB”). She shortly thereafter filed another Application with the Tribunal, file number 2016-25201-I on August 11, 2016 (the “second Application”). The second Application appears to be a continuation of the allegations in the first Application, and also raises issues of delay within the grievance process. The applicant has also named two individual respondents in the second Application.

3On November 2, 2016, the Tribunal sent a Notice of Intent to Defer the second Application on the basis that the issues raised are also part of the ongoing grievances, seeking submissions from the parties. The respondents have not yet been required to file Responses in either Application.

4The respondents support deferral, and note that ten hearing days, from March to July 2017, have already been scheduled to hear the grievances before the GSB. They further note that the Code issues raised in the Applications have also been raised in the grievances, and may be addressed by the GSB.

5The applicant opposes deferral, primarily on the basis of the delays she claims have occurred in the grievance process to date. She indicates that, in addition to having submitted the grievances, she has filed the Applications in order to ensure that her concerns are thoroughly and fairly addressed by an independent body. She is asking the Tribunal to proceed with the hearing of the Applications independently of the GSB.

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).

8Where 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 not disputed that the issues before the GSB are substantially the same as the issues raised in the Applications. The GSB is also an independent and unbiased body, who is able to address the issues as thoroughly and fairly as the Tribunal. Though the applicant has raised concerns over delays in the grievance process, a number of hearing dates have now been scheduled before the GSB over the next seven months. This favours deferral, as otherwise the arbitration and Tribunal proceedings will be running concurrently. As noted in Baghdasserians v. 674469 Ontario, 2008 HRTO 404, at para. 18 “[d]eferral of an application ensures that proceedings dealing with the same issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law.”

10For the above reasons, the Applications are deferred pending the conclusion of the grievance arbitration proceedings before the GSB. However, 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.

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. 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/.

12I am not seized.