Strang v. Ontario (Community and Social Services), 2016 HRTO 834

Margaret Strang

Applicant

-and-

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

Respondent

INTERIM DECISION

Adjudicator: Josée Bouchard

Date: June 21, 2016

Citation: 2016 HRTO 834

Indexed as: Strang v. Ontario (Community and Social Services)

WRITTEN SUBMISSIONS

Margaret Strang, Applicant

Self-represented

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

Jonathan Rabinovitch, Counsel

Introduction

1This is an Application filed 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 proceedings.

2The applicant is an Adjudication Clerk in the Disability Adjudication Unit of the respondent and she is a Crown employee. The applicant indicates in the Application that the facts are part of union grievances that are still in progress and she provides copies of her grievances.

3On May 10, 2016, the Tribunal issued a Notice of Intent to Defer (“NOID”) inviting the applicant, the respondent, any trade union or occupational or professional organization identified in the Application to make written submissions, no later than June 9, 2016, as to why the consideration of the Application should or should not be deferred.

4On May 27, 2016, the respondent filed submissions in response to the NOID arguing that the subject matter of this Application is similar in substance to the five grievances filed by the applicant. The respondent maintains that the grievances are already progressing through the grievance procedure and the Ontario Public Service Employees Union (“Union”) has referred them to the Grievance Settlement Board (“GSB”) for arbitration and they are scheduled for a hearing commencing on August 18, 2016.

5The respondent submits that pursuant to section 7(3) of the Crown Employees Collective Bargaining Act, 1993, S.O. 1993, c. 38 (“CECBA”), all grievances made by employees governed by Crown collective agreements must be resolved by the GSB. Section 7(3) provides:

7(3) Every collective agreement relating to Crown employees shall be deemed to provide for the final and binding settlement by arbitration by the Grievance Settlement Board, without stoppage of work, of all differences between the parties arising from the interpretation, application, administration or alleged violation of the agreement, including any question as to whether a matter is arbitrable.

6The respondent maintains that the alleged events underlying this Application took place while the applicant was an employee of the respondent and as such, her terms and conditions of employment were governed by the Collective Agreement between the Union and the Management Board of Cabinet (“Collective Agreement”).

7The respondent argues that article 3.1 of the Collective Agreement contains an exhaustive anti-discrimination clause which explicitly incorporates the Code by reference:

There shall be no discrimination practiced by reason of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status, or handicap, as defined in section 10(1) of the Code.

8In addition, section 2 of the CECBA incorporates provisions of the Ontario Labour Relations Act, 1995, S.O. 1995, c.1, and empowers the GSB to interpret and apply the Code.

9The applicant opposes the Request to Defer and asks that the Tribunal proceeding commence immediately. She argues that counsel for the respondent violated her constitutional right and freedom of information and started a collusion between people.

analysis and decision

10The 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.

11The 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.

12The 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.

13In this case, it is apparent that the same facts that are the subject of this Application are also the subject of the applicant’s grievances. The grievances and this Application deal with the same series of events regarding alleged bullying and harassment based in part on the applicant’s ethnic origin. These matters are properly dealt with at the GSB, as contemplated by the Collective Agreement. It is clear on the face of the grievances filed that the applicant has grieved the anti-discrimination clause of the Collective Agreement. The GSB has jurisdiction to interpret and apply the Code as necessary to resolve the allegations made in the grievances.

14The matter is still live and the applicant’s grievances are 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.

15The Application will therefore be deferred pending the completion of the grievance process.

16The 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

17The Application is deferred.

18I am not seized of this matter.

Dated at Toronto, this 21st day of June, 2016.

“signed by”

Josée Bouchard

Vice-chair```