Kelly Mark Foote v. The Office of the Ombudsman of Ontario, 2008 HRTO 415

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kelly Mark Foote Applicant

-and-

The Office of the Ombudsman of Ontario, Mary Elizabeth Nugent, Sue Haslam, Wendy Ray and Tim Arkell Respondents

INTERIM DECISION

Adjudicator: Ken Bhattacharjee Date: December 19, 2008 Citation: 2008 HRTO 415 Indexed as: Foote v. Ombudsman (Ontario)

1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), on September 29, 2008, which alleges that the respondents discriminated against him with respect to employment. The respondents filed a Response on November 10, 2008, which requests, among other things, that the Tribunal defer consideration of the Application because the matter is the subject of a union grievance that has been referred to arbitration under a collective agreement. The Applicant filed a Reply on November 26, 2008, which opposes the request for deferral.

2The purpose of this Interim Decision is to correct the name of the respondent organization, and to deal with the issue of whether it is appropriate for the Tribunal to defer consideration of this Application pending the conclusion of the arbitration proceeding.

3The Application names the respondent organization as "Ombudsman Ontario", but the Response identifies its full name as "The Office of the Ombudsman of Ontario". The Tribunal orders that the style of cause be amended accordingly.

4The applicant's union filed a grievance dated August 15, 2008, which alleges that the respondent organization violated the anti-discrimination/harassment and other provisions of the collective agreement by terminating his employment without just cause. The union has submitted the grievance to arbitration, but it is not clear from the submissions of the parties if hearing dates have been set.

5The respondents state that the arbitration proceeding will address the applicant's allegations of discrimination because the Labour Relations Act, 1995, S.O. 1995, c. 1, Sched. A, as amended, allows a labour arbitrator to interpret and apply human rights and other employment-related statutes as part of a full hearing.

6The applicant states that the arbitration proceeding will not consider and address his allegations of systemic discrimination, and even if it does, any decision will not have as great an effect on the public or as great a voice as this matter warrants. He further states that the Tribunal should not consider the respondent's deferral request until it receives forthcoming applications from other similarly affected persons, and has had a chance to decide whether or not his Application should be joined with those applications.

7Rule 14.1 of the Tribunal's Rules of Procedure state that it may defer consideration of an application, on such terms as it may determine, on its own initiative or at the request of any party. The Tribunal will consider, in light of the particular circumstances of each case, whether deferral is the most fair, just and expeditious way of proceeding with the Application. The Tribunal will generally defer an application where there is an ongoing grievance under a collective agreement based on the same facts and issues.

8In my view, deferral is the most fair, just and expeditious way of proceeding with the Application. The applicant did not identify any particular circumstance which would cause the Tribunal to depart from its normal approach. The facts and issues raised in the grievance are largely the same as those raised in the Application to the Tribunal, and the labour arbitrator has the authority to interpret and apply the Code to address any allegations of discrimination, including systemic discrimination. Furthermore, the Tribunal cannot make a decision in relation to forthcoming applications, which are not currently before the Tribunal. Accordingly, the Tribunal orders the deferral of the Application pending the conclusion of the grievance.

9Where a party wishes to proceed with an application which has been deferred, the party must make a Request for an Order During Proceedings in accordance with Rule 19 within 60 days after the conclusion of the other proceeding (Rules 14.3 and 14.4). I am not seized of this matter.