Badura v. Crosby, 2009 HRTO 1068

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Paul Badura

Applicant

-and-

Olimpia Crosby and Dan Koenig

Respondents

INTERIM DECISION

Adjudicator: Brian Eyolfson

Date: July 21, 2009

Citation: 2009 HRTO 1068

Indexed as: Badura v. Crosby

1This is an Application filed on January 15, 2009 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”), alleging discrimination in employment and contracts on the basis of sexual orientation and association with a person identified by the ground of sexual orientation. Olimpia Crosby was named as a respondent in the Application. In the Response to the Application, Dan Koenig was named as an additional respondent.

2In their Response, the respondents also requested that the Application be deferred pending the completion of a grievance proceeding. The Ontario English Catholic Teachers Association (the “union”) filed a Request to Intervene, wherein it submitted that the matter should be deferred as the grievance raised the same factual and legal issues as the Application. This Interim Decision deals with the issue of whether the Application should be deferred.

3The respondents submit that a grievance dated January 12, 2009 was filed, alleging that the respondents “… have acted in a harassing, intimidating, demeaning and bullying manner” towards the applicant. The respondents included a copy of the grievance with their Response. The grievance alleges, among other things, that the Code was violated and seeks full redress. The respondents submit that, given that the substance of both the grievance and the Application is the workplace supervision of the applicant by the respondents and given that the grievance remains active and is proceeding through the grievance/arbitration process, the Tribunal should defer the Application until such time as the grievance/arbitration is exhausted.

4The Tribunal shared the respondents’ Response with the applicant and indicated that he may file a Reply to the Response and that his Reply must address the respondents’ request to defer. The applicant filed a Reply but did not address the request to defer.

5The Tribunal may defer consideration of an application, on such terms as it may determine, on its own initiative or at the request of any party (Rule 14.1). The Tribunal has stated that deferral is not automatically invoked simply because the parties are involved in other legal proceedings. It is a discretionary measure that the Tribunal exercises on the basis of the circumstances in each case. Absent good reason, applicants and respondents before the Tribunal are entitled to expect the Tribunal to take timely action to resolve complaints of discrimination brought before it.

6The Tribunal has generally deferred applications where there is an ongoing grievance under a collective agreement based on the same facts and human rights issues. In explaining this approach, the Tribunal has referred to the fact that the Supreme Court of Canada has affirmed that grievance arbitrators have 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 (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42).

7The Supreme Court thus confirmed that human rights tribunals are not the only decision-makers that can decide human rights claims. Where the parties are already engaged in a concurrent legal proceeding in which they are raising the same human rights issues before a decision-making body with the authority to make determinations about those issues, the orderly administration of justice favours deferral to the other proceeding. In such a scenario, Tribunal’s normal approach is to defer to the other proceeding (Blackman v. Ontario (Community Safety and Correctional Services, 2009 HRTO 970).

8In the present case, the applicant has a grievance based on substantially the same facts as the Application, alleging that his employer violated the Code and seeking full redress. While it is not clear what stage in the process the grievance is at, if it proceeds to arbitration, an arbitrator will have the authority to deal with the human rights issues raised in the grievance. There are no circumstances that would cause the Tribunal to depart from its normal approach.

9The Application will therefore be deferred pending the completion of the grievance process. It is not necessary to deal with the union’s Request to Intervene at this point in time.

10The Tribunal directs the parties’ attention to Rules 14.3 and 14.4 which outline the procedure by which the Application may be brought back on after the conclusion of the grievance process.

11I am not seized.