HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Ivy Bernard
Applicant
-and-
Royal Ottawa Health Care Group
Respondent
INTERIM DECISION
Adjudicator: Josée Bouchard
Indexed as: Bernard v. Royal Ottawa Health Care Group
1The applicant filed an Application 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 race, colour, ancestry, place of origin and ethnic origin. This Interim Decision deals with whether the Application should be deferred pending the completion of a related union grievance proceeding.
2On April 11, 2016, the Tribunal issued a Notice of Intent to Defer (“Notice”) to the parties and the Canadian Union of Public Employees (“CUPE”) as an organization that may be affected by this proceeding. The Notice directed the parties to file submissions as to whether the Tribunal should defer the Application pending the completion of a grievance proceeding.
3The applicant opposes deferral, maintaining that she has been dealing with this pressing matter for over a year. She argues that the respondent, in a letter dated March 29, 2016 (“March 29th letter”), states that the “complaint” was considered closed in April 2015, that there has been no violation of the collective agreement and that it denies the grievance. I note that the applicant appears to confuse the grievance process with an internal investigation process. The March 29th letter refers to an investigation conducted by the employer in March 2015 and closed in April 2015. The March 29th letter is not a dismissal of the grievance but the respondent’s response to CUPE in the grievance between the parties.
4The respondent supports deferral and submits that the grievance is based on the same facts and human rights issues as those alleged in the present Application, namely the employer’s failure to provide a safe and harassment free work environment and to follow proper procedures for dealing with discrimination. The respondent maintains that Steps 1 and 2 Grievance Forms were filed on February 25, 2016 and March 4, 2016 respectively, and the grievance process is ongoing between the parties.
5CUPE, and its Local 942, the applicant’s bargaining agent, also supports deferral, confirming that a grievance dealing with the same subject matter as the Application is currently proceeding through the grievance process.
Analysis and decision
6The Tribunal may defer consideration of an application, on such terms as it may determine, and on its own initiative (Rule 14.1 of the Rules of Procedure). Deferral 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.
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.
8The Supreme Court thus confirmed that human rights tribunals are not the only decision-makers that can decide human rights claims. Where the parties are 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.
9As stated in Melville v. Toronto (City), 2012 HRTO 22, at para. 8:
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.
10Both the respondent and CUPE agree that the Application and the grievance address the same facts and subject matter. The matters are still alive 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 before the Tribunal. This will be the most expeditious way of proceeding.
11The Application will therefore be deferred pending the completion of the grievance and arbitration process.
12The 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 and arbitration process.
Order
13The Application is deferred pending the completion of the grievance and arbitration process.
14I am not seized of this matter.
Dated at Toronto, this 24th day of May, 2016.
“Signed By”
Josée Bouchard
Vice-chair