Jones v. Ontario (Community Safety and Correctional Services), 2016 HRTO 576

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Stephen Jones

Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Ministry of Community Safety and Correctional Services

Respondent

INTERIM DECISION

Adjudicator: Dawn J. Kershaw

Date: May 2, 2016

Citation: 2016 HRTO 576

Indexed as: Jones v. Ontario (Community Safety and Correctional Services)

WRITTEN SUBMISSIONS

Stephen Jones, Applicant

Self-Represented

Her Majesty the Queen in Right of Ontario as represented by the Ministry of Community Safety and Correctional Services, Respondent

Peter Dailleboust, Counsel

Introduction

1This is an Application filed on February 3, 2016 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) alleging reprisal and discrimination in employment on the ground of disability. This Interim Decision deals with the issue of whether the Application should be deferred pending the completion of what the respondent alleges is a related grievance proceeding.

2This Application involves the same parties and some of the same underlying facts as the Application in 2015-20705-I.

3The Tribunal issued a Notice of Intent to Defer (“NOID”) on March 7, 2016, seeking submissions from the parties about whether it would be appropriate to defer the consideration of the Application pending the resolution of another legal proceeding dealing with the subject-matter of the Application pursuant to Rule 14 of the HRTO’s Rules of Procedure. The Tribunal directed the parties to file submissions addressing this issue and stated that the respondents were not required, at this point, to file a Response. The applicant and respondent filed submissions.

4The applicant’s submission states that there is no overlap between the legal proceeding, which is scheduled to be heard in January, 2017, and this Application. He submits the legal proceeding primarily is based on an individual from another work location, and asks that the Application not be deferred.

5The respondent submits deferral is appropriate because the subject matter of this Application is related to the substance of the complaint the applicant filed under the Public Service of Ontario Act, 2006 (“PSOA”) and the Application in 2015-20705-I. The respondent submits that the PSOA proceeding already has gone through the hearing procedure and has now been referred to the Public Service Grievance Board (“PSGB”) for arbitration. Mediation did not settle the PSOA proceeding and three days of arbitration are set to begin October 18, 2016.

6The respondent alleges that the applicant’s claim of reprisal relates to the WDHP complaint that is the subject of his PSOA complaints. As such, the respondent submits there will be overlap between the PSGB hearing and this Application because the factual foundation for both the original allegations and for the reprisal in relation to them is the same. In addition, one of the remedies the applicant requests in this Application is an investigation into the last three years of his employment.

7The respondent points out that the Tribunal deferred the Application in 2015-20705-I, and noted that the Tribunal generally defers applications when there is an ongoing grievance under the PSOA based on the same facts, particularly since labour arbitrators has the authority to interpret and apply the Code.

ANALYSIS

8The 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.

9The 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.

10The 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.

11As stated in Melville v. Toronto (City) 2012 HRTO 22:

Deferral avoids two simultaneous proceedings that may result in conflicting determinations, ensures that the respondent need not be actively defending the same matter in two legal proceedings at the same time, and focuses the Tribunal’s limited resources on cases where it is the only process being pursued. In my view, it is consistent with the Tribunal’s mandate to interpret its rules in a fair, just and expeditious manner to defer a case when a grievance is ongoing, whether or not that grievance has yet been referred to arbitration. The grievance process is a stage in dispute resolution before the matter is referred to an independent third party, but that does not mean that there is no proceeding ongoing. Fairness supports avoiding the duplication of proceedings.

12In this case, although this Application deals with reprisal that the applicant alleges has occurred since he filed the Application in 2015-20705-I and the grievance, it is apparent that there is substantial overlap between the facts and human rights issues covered by this Application and those referred to in the grievance, particularly since the claim of reprisal relates to the complaint that is the subject of the applicant’s PSGB’s proceeding. As a result, there is the possibility of inconsistent findings of fact if both matters proceed concurrently. The grievance is scheduled for October, 2016 and is the most expeditious manner of proceeding. In the Tribunal’s process, the respondent has not yet filed a Response.

13It is appropriate to defer this Application pending conclusion of the arbitration process.

14If the applicant believes, on conclusion of that process, that his human rights issues have not been adequately addressed, he may ask to have his Application brought back on before the Tribunal.

15The Tribunal directs the parties’ attention to Rules 14.3 and 14.4 of the Tribunal’s Rules of Procedure which outline the procedure by which the Application may be brought back on after the conclusion of the grievance process. In particular, the parties’ attention is drawn to Rule 14.4 which requires that a request to re-activate a deferred Application must be filed no later than 60 days after the conclusion of the other proceeding.

16I am not seized of this matter.