Franks v. Financial Services Commission of Ontario, 2009 HRTO 1119

Human Rights Tribunal of Ontario

Between:

John Franks Applicant

-and-

Financial Services Commission of Ontario Respondent

Interim Decision

Adjudicator: Sheri D. Price Date: July 23, 2009 Citation: 2009 HRTO 1119 Indexed as: Franks v. Financial Services Commission of Ontario

1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code") alleging that the respondent discriminated against the applicant on the basis of disability in respect of employment. This Interim Decision addresses the respondent employer's request that the Tribunal defer consideration of this Application pending the conclusion of the grievance and arbitration procedure in respect of a grievance which, it submits, raises some or all of the same facts and issues as the Application.

2The applicant's trade union, Association of Management, Administrative and Professional Crown Employees of Ontario ("AMAPCEO"), filed a grievance against the respondent on February 16, 2009 alleging, among other things, that the respondent had violated the Code by failing to accommodate the applicant to the point of undue hardship by allowing him to work from home. These facts and issues are also raised in the Application.

3The respondent asserts that the grievance was referred to Stage 2 of the grievance procedure on June 2, 2009. If the grievance is not resolved at Stage 2, it may be referred to arbitration.

4The 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 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 expeditious way of proceeding with the application.

5Deferral of an Application seeks to ensure that proceedings dealing with the same facts or issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law. Some of the factors that may be relevant in deciding whether to defer consideration of an application before the Tribunal are the subject-matter of the other proceeding, the nature of the other proceeding, the type of remedies available in the other proceeding, and whether it would be fair overall to the parties to defer, having regard to the status of each proceeding and the steps that have been taken to pursue them: Klein v. Toronto Zionist Council, 2008 HRTO 189.

6The applicant indicates that he consents to deferral of the Application on condition that he be permitted to bring the Application back on for hearing before the Tribunal if the grievance procedure is delayed or ineffective; if he does not get the relief he seeks; or if the Union does not refer the grievance to arbitration.

7Although the Tribunal may defer an Application on such terms as it may determine, it does not generally defer on a conditional basis, but rather based on whether deferral is appropriate in the circumstances.

8The facts and issues raised by this Application are part of a grievance and arbitration process that is still in progress and the applicant has not identified any circumstances that would cause the Tribunal to depart from its normal approach of deferring to the grievance and arbitration procedure. I find that, in these circumstances, deferring the Application is appropriate.

9If, following the conclusion of the grievance and arbitration procedure, the applicant's grievance has not been referred to arbitration or if the applicant has not obtained the relief he seeks, then the applicant may seek to bring the Application back on before the Tribunal, in accordance with Rules 14.3 and 14.4 of the Tribunal's Rules of Procedure (available on our website, www.hrto.ca).

10Alternatively, it would be open to the applicant to file a Request seeking to bring the Application back on before the conclusion of the grievance and arbitration procedure, if he feels that the grievance procedure has become unduly delayed or ineffective. However, in taking such a step, the applicant should be mindful of the Tribunal's normal approach to deferral and the reasons for it. Typically, having made the decision to defer, the Tribunal will not proceed with an Application before the other proceeding to which it has deferred has concluded, simply because a party feels that the other proceeding is not moving along as quickly as desired.

11There is an outstanding Request to Intervene in this proceeding by the applicant's trade union. The Tribunal will address the Request when and if this Application is brought back on before the Tribunal.

12I am not seized of this matter.