Di Matteo v. Ontario (MOHLTC), 2017 HRTO 1029

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Liliana Di Matteo

Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Ministry of Health and Long-Term Care, and Ontario Public Sector Employees’ Union

Respondents

INTERIM DECISION

Adjudicator: Bruce Best

Date: August 10, 2017

Citation: 2017 HRTO 1029

Indexed as: Di Matteo v. Ontario (MOHLTC)

WRITTEN SUBMISSIONS

Liliana Di Matteo, Applicant

Self-represented

Her Majesty the Queen in Right of Ontario as represented by the Ministry of Health and Long-Term Care, Respondent

Henry Huang, Counsel

Ontario Public Sector Employees’ Union, Respondent

Joel Schwartz, Counsel

Introduction

1This Application alleges discrimination contrary to the Human Rights Code, R.S.O. 1990, c.H.19, as amended (the “Code”).

1The issues in the Application respecting the respondent employer are also part of several grievances currently before the Grievance Settlement Board (“GSB”), where the parties have already appeared, attempted mediation, and addressed several procedural issues. The last appearance at the GSB was in late July 2017. The grievance proceeding is ongoing.

2The Tribunal has generally deferred applications where there is an ongoing grievance under a collective agreement based on the same facts and human rights issues. 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). The Supreme Court of Canada has also confirmed that human rights tribunals are not the only decision-makers that can decide human rights issues. See Tranchemontagne v. Ontario (Director, Disability Support Program), 2006 SCC 14.

3Where the parties are already engaged in a concurrent legal proceeding where they are raising the same or related human rights issues before a decision-making body with the authority to make determinations about those issues, the orderly administration of justice favours deferral. In such a scenario, the Tribunal’s normal approach is to defer to the other proceeding. 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.”

4The applicant opposes deferral. She indicates she wants the matter to be resolved as soon as possible. She also notes that the grievances will not address her complaints against the union. She also expresses a concern that her side of the story is not being heard in the grievance process.

5The respondent employer and the respondent union both support deferral. Though the respondents acknowledge that the allegations against the union may not be addressed through the grievances, they argue that the Application should nonetheless be deferred. They argue the allegations relate to the union’s representation of the applicant in the grievances, and cannot be determined independently of the issues raised in the grievances themselves.

6In this case, 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, and that deferral is appropriate.

7I am satisfied that the concerns the applicant raises about the Union’s representation on the applicant’s grievances do not justify a departure from the Tribunal’s normal approach. The applicant has indicated that her claim against the union is respecting whether she has received fair representation. I agree with the respondents that the allegations against the union appear to be closely connected to the issues raised in the grievances. Proceeding with the Application against the union alone would still raise the concern respecting inconsistent decisions. I note also that the union disputes that the allegations against it could amount to a violation of the Code. This issue may be addressed should the applicant seek to reactivate the Application against the union following the conclusion of the grievance process.

8With respect to timing, as the grievance hearing process is already underway, the issues will be clearly be addressed at the GSB well before they could be addressed at the Tribunal.

9The Application will therefore be deferred pending the completion of the grievance process currently before the Grievance Settlement Board.

10If 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. The 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/.

11I am not seized.