HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Bruno Alain Loranger

Applicant

-and-

Customs and Immigration Union

Respondent

INTERIM DECISION

Adjudicator: David A. Wright

Date: December 29, 2008

Citation: 2008 HRTO 432

Indexed as: Loranger v. Customs and Immigration Union

WRITTEN SUBMISSIONS BY

Bruno Loranger, Applicant ) On His Own Behalf

Customs and Immigration Union, Respondent ) Jennifer E. Birrell, Counsel

INTRODUCTION

1Bruno Loranger works for the respondent Customs and Immigration Union as a labour relations officer, servicing Ottawa, eastern Ontario, Quebec and the Atlantic provinces. In the course of that work, he is required to travel. He states that his spouse is pregnant and due in the first week of May 2009, and that he has an older child who has special needs. He argues that he is entitled to accommodation on the basis of family status by being exempted from travel, given the effects that caring for their special needs child alone could have on his spouse’s high-risk pregnancy.

2Mr. Loranger filed an Application with the Tribunal under s. 34 of the Human Rights Code, R.S.O. 1990, c.H.19, as amended (the “Code”), on December 2, 2008. He asks that his Application be expedited under Rule 21 of the Tribunal’s Rules of Procedure. He also asks that the Tribunal award as an interim remedy, under Rule 23, that he be exempt from travel during his spouse’s pregnancy. The respondent states that it is willing to accommodate the applicant’s request on a case-by-case basis, that it has offered accommodation by arranging travel within the workday, and that it has sought further documentation from him.

3Mr. Loranger is represented by a Union, the Alliance Employees Union. A grievance regarding the same matters raised in his Application was filed dated November 20, 2008. The grievance process is ongoing. The parties agreed to an extension of one week at step one of the process to consider new medical information. The respondent asks that the Tribunal defer consideration of the Application, including the requests for interim relief and expedited proceedings, pending the completion of the grievance and arbitration process, under Rule 14.

4The applicant opposes deferral. He is of the view that the grievance may take from six months to a year to resolve, and that the respondent has delayed the grievance process. He argues that the Tribunal should grant the request for interim remedy, even if the Application itself is deferred.

ANALYSIS

5In general, the Tribunal will defer an application where an ongoing grievance process under a collective agreement is dealing with the same facts and issues: Cray v. Rouge Valley Health System, 2008 HRTO 120; Krieger v. Toronto Police Services Board, 2008 HRTO 183. Absent the requests for expedited proceedings and interim relief and the time-sensitive nature of the issues, this Application would be deferred. The issue I must determine is whether these factors suggest that the Tribunal should not defer in these circumstances.

6As the respondent correctly points out, the Labour Relations Act, 1995, S.O. 1995, c. 1, Sched. A, s. 49 (“LRA”) provides for the possibility of expedited arbitration on request of either party to a collective agreement, 30 days after the grievance was filed or after the grievance procedure was completed, whichever first occurs. Where a request is made under s. 49, an arbitrator is appointed by the Minister of Labour and the grievance hearing is scheduled three weeks after the request is filed: s. 49(7).

7In my view, given the ongoing grievance and possibility of expedited arbitration proceedings, the Application should be deferred, as this will avoid “the prospect of concurrent overlapping proceedings and the potential for conflicting findings of fact or law” (Baghdasserians v. 674469 Ontario, 2008 HRTO 404 at para. 20), which is the reason the Tribunal generally defers to arbitration proceedings. At this stage, there is no reason to believe that the ongoing grievance process cannot determine the substantive issues raised in the Application in an expedited manner.

8Accordingly, the Tribunal will defer the Application pending the completion of the grievance process. In light of the reasons favouring deferral, in the circumstances of this case, it would not be appropriate for the Tribunal to determine the request for interim remedy under Rule 23. Interim remedies are generally awarded in anticipation of a hearing on the merits by the Tribunal, and in this case it would be inappropriate for the Tribunal to award interim relief where the application is being deferred while another proceeding is dealing with the merits of the issue.

9Accordingly, the Tribunal will defer the Application. Where 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 of the Tribunal’s Rules of Procedure no later than 60 days after the conclusion of the other proceeding (Rules 14.3 and 14.4).

10I am not seized of this matter.