Patrick Quinn v. Community Living Essex County, 2008 HRTO 371

Human Rights Tribunal of Ontario

B E T W E E N:

Patrick Quinn

Applicant

-and-

Community Living Essex County, Nancy Wallace Gero, Claire Market and Lori Huson

Respondents

INTERIM DECISION

Adjudicator: David Muir

Date: December 5, 2008

Citation: 2008 HRTO 371

Indexed as: Quinn v. Community Living Essex County

1This is an Application filed August 7, 2008 under section 53(3) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). On September 18, 2008 the respondents filed their Response to the Application. On August 14, 2008 the Tribunal scheduled a mediation for October 16, 2008.

2In their Response, the respondents requested a deferral of the Tribunal proceedings pending the outcome of an arbitration, scheduled to begin on February 25, 2009, on the same subject matter as the Application. The respondents also requested that the applicant's trade union be given notice of these proceedings.

3On October 6, 2008 the respondents reiterated their request for a deferral or notice to the applicant's bargaining agent because the trade union "has exclusive bargaining rights in respect of the terms and condition of Mr. Quinn's employment, and accordingly, the employer is precluded from negotiation directly with Mr. Quinn". For that reason it was submitted that a mediation in the absence of the Union would not be productive.

4By interim decision dated October 8, 2008, the Tribunal exercised its discretion to give notice to the trade union of the mediation scheduled for October 16, 2008 and to afford the union an opportunity to participate in the mediation: Quinn v. Community Living Essex County, 2008 HRTO 134. The mediation did proceed with the trade union's participation, but did not resolve this Application.

5The interim decision did not decide the respondents' request to defer this Application. The Tribunal requested submissions on this issue from the parties and from the trade union. The Tribunal has received the submissions of the parties and the trade union and I am satisfied that this issue can be determined on the basis of the materials filed.

6The 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 the particular circumstances of each case, whether deferral is the most fair, just and highly expeditious way of proceeding with the Application.

7The parties to this Application as well as the trade union are agreed that this Application ought to be deferred pending the conclusion of the arbitration. The parties' agreement, although important, does not end the inquiry.

8The facts and issues raised by this Application are part of a grievance process that is scheduled to begin March 13, 2009, during the same time period that the parties are being canvassed for dates to begin a case resolution conference at the Tribunal. The issues in the Application and the grievance arbitration are largely indistinguishable and the parties have agreed that the arbitration should proceed first. The arbitrator has 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 Social Services Administration Board v. O.P.S.E.U., Local 342, 2003 SCC 42).

9For these reasons I am satisfied the arbitration proceeding should proceed to its conclusion before the Tribunal deals with the Application.

10Any party wishing to proceed further with this Application should do so within 60 days of the conclusion of the arbitration in writing to the Registrar-Transition.