Ariyeh Krieger v. Toronto Police Services Board and Chief William Blair, 2008 HRTO 183

Human Rights Tribunal of Ontario

B E T W E E N:

Ariyeh Krieger

Applicant

-and-

Toronto Police Services Board and Chief William Blair

Respondents

INTERIM DECISION

Adjudicator: Naomi Overend

Date: October 23, 2008

Citation: 2008 HRTO 183

Indexed as: Krieger v. Toronto Police Services Board

Human Rights Tribunal of Ontario

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WRITTEN SUBMISSIONS BY

Ariyeh Krieger, Complainant ) Caroline V. (Nini) Jones, Counsel )

Toronto Police Association, Respondent ) Jessica Dowling, Counsel

Toronto Police Services Board and ) Kerri Kitchura, Counsel

Chief William Blair, Respondents )

1The applicant filed an Application under Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination in employment on the basis of disability. In his Application, the applicant advises that the Toronto Police Association (the “Association”) filed a grievance on his behalf which is in progress. The subject matter of the grievance is substantially the same as the Application.

2The Tribunal issued a “Notice of Intent to Defer” on September 8, 2008, requesting the parties to make submissions on whether the Tribunal should defer consideration of this Application until such time as the grievance is resolved. The applicant and the Association oppose any such deferral, while the respondents, the Toronto Police Services Board and Chief William Blair, support deferring the Application pending the resolution or withdrawal of the grievance.

3Although arguing that the Tribunal should defer to the grievance process, the respondents take the position that the grievance is not arbitrable because the applicant was a probationary employee at the time of his termination from the police services. They argue that the language of the collective agreement expressly precludes the Association from grieving the termination of probationary employees.

4Thus, at the initial stages of the grievance process, the respondents took the position that the Association was barred from grieving this matter. The respondents have also advised the Association that, in the event the Association decides to proceed to arbitration (the next step in the grievance process), they will raise the arbitrator’s jurisdiction to determine the grievance by way of a preliminary objection.

5The applicant and Association argue that it is inappropriate to defer the hearing of the Application for this very reason. They also argue there are other reasons to oppose deferral. It is not necessary to consider these other arguments at this time.

Is Deferral Appropriate in these Circumstances?

6The Tribunal may defer consideration of an application, on such terms as it may determine, on its own initiative (Rule 14.1). The Tribunal will generally defer an application where there is an ongoing grievance under a collective agreement based on the same facts and issues. However, the Tribunal must also consider, in light of particular circumstances of each case, whether deferral is the most fair, just and expeditious way of proceeding with the Application.

7In light of the respondents’ position that there is no jurisdiction to hear the grievance and stated intention to challenge the adjudication of the grievance on that ground, deferral to the grievance process is not appropriate. That is, in the particular circumstances of this case, the most fair, just and expeditious outcome is to proceed with this Application.

8The Tribunal orders that the respondents file their Response within 35 days of receipt of this decision. I am not seized of this matter.