Human Rights Tribunal of Ontario
B E T W E E N:
George Ziegler Applicant
-and-
The Corporation of the City of Mississauga, Canadian Union of Public Employees and its Local 66, Dan Ferguson and Silvio Cesario Respondents
INTERIM DECISION
Adjudicator: Alan Whyte Date: July 24, 2009 Citation: 2009 HRTO 1139 Indexed as: Ziegler v. Mississauga (City)
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”) which alleges discrimination and reprisal in employment.
2The applicant suffered a workplace injury in May 2007. He returned to modified work in July 2007 but was unable to continue working as of October 5, 2007. In late 2007 a job was posted by the Corporation of the City of Mississauga (“the City”) for which the applicant applied. Because of his qualifications and seniority, the applicant felt confident about his ability to secure the position. On January 11, 2008, when the applicant attended at the City for a job interview, he was told that he was ineligible because he was on the City's attendance management program.
3The applicant filed a grievance with his bargaining agent C.U.P.E and its Local 66 (“the Union”) in January 2008. The grievance states that the applicant was “unjustly denied” the promotion that he sought. The grievance proceeded through the grievance procedure, has been referred to arbitration and is scheduled to be heard by arbitrator Davie on February 25, 2010.
4Both the City and the Union have filed Responses which raise a variety of issues in defence of the Application, including requests that the Tribunal defer the Application pending the conclusion of the grievance proceedings.
5In his Reply, the applicant submits that there are a number of issues encompassed by his Application beyond the denial of his ability to compete for the posted position, including:
- the removal of a parking spot which was close to the applicant’s modified workplace. Following that removal, the applicant alleges that his knee and back injuries flared up and ultimately caused him to go off work on October 5, 2007;
- the denial of the occurrence of the work accident, as set out in the City's Response to the Application;
- harassment by the City in the form of unjustified numerous requests for medical documentation, in the face of medical documentation provided by his family doctor to support his disabilities and the reasons for his absence since October 5, 2007;
- alleged lack of cooperation on the part of the City in assisting him to obtain long-term disability benefits.
6Pursuant to Rule 14.1 of the Tribunal’s Rules of Procedure, the Tribunal may defer consideration of an Application, on such terms as it may determine, on its own initiative, at the request of an applicant under Rule 7, or at the request of any party. 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.
7The 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). The Supreme Court thus confirmed that human rights tribunals are not the only decision-makers that can decide human rights claims.
8Where 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).
9The Tribunal’s jurisprudence has established that the initial consideration in deciding whether or not to defer to another proceeding is whether the same facts and human rights issues are being raised before another decision-maker with the authority to deal with those issues. In this case, the most significant issue in both proceedings is the denial of the promotional opportunity by the City, which is something that will be squarely before the arbitrator in February 2010. Accordingly, there is a significant overlap of facts and human rights issues in the grievance proceedings and the Application.
10As stated in Leblanc v. Toronto (City), 2009 HRTO 960, even where concurrent legal proceedings do not clearly engage human rights issues, but raise facts or issues which overlap with those before the Tribunal, the Tribunal will consider whether to defer based on other factors, such as the subject matter of the other proceeding, its nature, the type of remedies available, the status of the other proceeding and steps that have been taken to pursue it.
11In the case at hand, there is a significant overlap of facts and issues, including human rights issues, in the grievance proceeding and the Application. In addition, the ongoing grievance is scheduled to proceed to arbitration in February 2010. Following the completion of the arbitration process, it will be open to the applicant to return to the Tribunal in order to have any remaining issues of accommodation dealt with.
12For these reasons, the respondents’ requests for deferral of this proceeding are allowed.
13The Tribunal directs the parties’ attention to Rules 14.3 and 14.4 which outline how the Application may be brought back on after the conclusion of the grievance process.
14I am not seized.
Dated at Toronto, this 24^th^ day of July, 2009.
“Signed by”
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Alan Whyte Vice-chair