Caron v. Enwin Utilities, 2009 HRTO 1178

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jonathan Caron

Applicant

-and-

Enwin Utilities and Pat Devin-Doan

Respondents

INTERIM DECISION

Adjudicator: Brian Eyolfson

Date: July 29, 2009

Citation: 2009 HRTO 1178

Indexed as: Caron v. Enwin Utilities

1This is an Application filed on May 27, 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 on the basis of disability, creed and sex. On June 15, 2009, the Tribunal sent a Notice of Intent to Defer, along with a copy of the Application, to the parties and to the applicant’s union, the International Brotherhood of Electrical Workers, Local 636 (the “union”). This Interim Decision deals with the issue of whether the Application should be deferred pending the completion of a related grievance proceeding. The style of cause has been amended to reflect the correct spelling of the individual respondent’s name as provided in the respondents’ submissions.

2The applicant indicated in his Application that the facts of the Application are part of a union grievance proceeding that is still in progress. The applicant did not provide submissions in response to the Notice of Intent to Defer.

3The respondents provided a copy of a grievance, dated June 23, 2009 and signed by the applicant, alleging harassment and a poisoned work environment. The respondents submit that the issues raised in the grievance are in essence identical to the issues raised in the Application. The grievance specifically alleges a violation of the Code.

4The union submits that the Application should be deferred pending the outcome of the grievance and indicated that it intends to pursue the grievance through the grievance arbitration procedure under the Collective Agreement.

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 harassment and a poisoned work environment and seeking broad remedies. The union has indicated that it intends to pursue the grievance through the grievance arbitration procedure. If the grievance 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.

10The respondents filed a Request for an Order During Proceedings in which they ask for an extension of time to file their Response thirty days following the Tribunal’s decision on the deferral issue. This Request was not opposed. The Tribunal grants the respondents’ Request for an extension of time to file their Response thirty days following the date of this Interim Decision.

11The 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.

12I am not seized.