Nemani v. Ontario (Treasury Board Secretariat), 2017 HRTO 1076

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Karen Nemani Applicant

-and-

Her Majesty the Queen in right of Ontario as represented by the Minister of Treasury Board Secretariat Respondent

INTERIM DECISION

Adjudicator: Eban Bayefsky Date: August 17, 2017 Citation: 2017 HRTO 1076 Indexed as: Nemani v. Ontario (Treasury Board Secretariat)

WRITTEN SUBMISSIONS

Karen Nemani, Applicant Christine Mizon, Paralegal

Her Majesty the Queen in right of Ontario as represented by the Minister of Treasury Board Secretariat, Respondent Debra Kyle, Counsel

1This Interim Decision addresses whether the Tribunal should defer consideration of the Application pending the conclusion of the grievance proceeding in this case.

2The applicant filed an Application alleging discrimination in employment because of sex and reprisal, contrary to the Human Rights Code, R.S.O. 1990, c. H. 19, as amended (the “Code”). Specifically, the applicant alleged that she was harassed and humiliated by her manager, and ultimately had to resign because of the lack of support and emotional distress she experienced.

3In addition to filing this Application, the applicant filed a grievance with her union. The union has yet to refer the grievance to arbitration. The applicant has filed two other complaints which are to be joined with the existing grievance.

4By Notice of Intent to Defer dated July 7, 2017, the Tribunal proposed to defer consideration of the Application pending the conclusion of the grievance proceeding.

5The applicant submitted that the Application should not be deferred because the grievance has been in progress for some time now, she was eager to settle and she was not confident the matter would be resolved through the usual workplace dispute “channels.”

6The respondent submitted that the Application should be deferred given the similarity between the grievance and Application (and the other two complaints), the need to avoid the duplication of proceedings, and the need to ensure that parties to a collective agreement resolve their disputes through the process negotiated between them.

findings

7The 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 generally deferred applications where there is an ongoing grievance under a collective agreement based on the same facts and human rights issues. The reason for this is that grievance arbitrators have, not only the power, but also the responsibility to enforce human rights and other employment-related statutes as if they were part of a collective agreement. See Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42.

8In this case, the applicant has raised the same facts and issues of management harassment, discrimination and reprisal in her grievance, complaints and Application. While there has been some delay in the grievance, given the significant overlap between the proceedings, and the general approach of the Tribunal where there is a grievance in progress, I find it appropriate for the Tribunal to defer consideration of the Application pending the conclusion of the grievance proceeding.

9If the applicant believes that the grievance proceeding did not appropriately deal with the substance of her Application, she may seek to re-activate her deferred Application. However, the applicant should take note that, under s. 45.1 of the Code, the Tribunal has the power to dismiss Applications if the substance of an Application has been appropriately dealt with in another proceeding.

10Rules 14.3 and 14.4 of the Tribunal’s Rules of Procedure address how an application may be brought back before the Tribunal following conclusion of another proceeding. It should be noted that, a party wishing to proceed with an application must file a Request for Order During Proceedings (Form 10) no later than 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

11For the above reasons, the Tribunal defers consideration of this Application pending the conclusion of the grievance proceeding in this case.