Bower v. Toronto Community Housing Corporation, 2009 HRTO 1258

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Donald Bower

Applicant

-and-

Toronto Community Housing Corporation, Pat Milana, Paulette Duplessie, Maurice Brenner, and Steve Flores

Respondents

INTERIM DECISION

Adjudicator: Judith Keene

Date: August 13, 2009

Citation: 2009 HRTO 1258

Indexed as: Bower v. Toronto Community Housing Corporation

1This Interim Decision concerns an Application filed on February 24, 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. The Application cites numerous allegations of harassment and a five-day suspension, which the applicant alleges is discriminatory. The Application refers to being “accused of a mental disorder…denied a voice recorder to assist me in my duties”, and being denied “help to shovel snow”, forced to work with an injured hand, and suspended for not fulfilling employment duties. The Application also alleges that individual respondents passed “hurtful emails around the company about my hand disability and alleged mental disorder”.

2One Response has been filed on behalf of all respondents. In their Response, the respondents request that the Application be deferred pending the completion of related grievance proceedings. The Toronto Civic Employees’ Union, Local 416, (the “union”) has submitted a request to intervene, indicating that it has filed two grievances on the applicant’s behalf “regarding the five day suspension and allegations of harassment”. This Interim Decision deals with the respondents’ request to defer.

3The respondents submit that the allegations which form the substance of the Application are currently the subject of a grievance and enclosed with its Response a copy of two grievances, both dated March 17, 2009, filed on the applicant’s behalf by the union, which the correspondence now indicates are at Stage 3. Neither grievance form contains details of the facts and issues grieved. One grievance alleges “harassment”; the other, an “unfair and unjust” 5-day suspension”. Neither grievance specifically mentions the Code. In each case, the requested remedy is “For the grievor to be made whole plus interest and damages or any other remedy deemed suitable”.

4The Response admits that one of the personal respondents asked the applicant about a mental disability, although it denies harassment. The respondents admit that the applicant injured his wrist as claimed, but the Response asserts that the applicant’s disability was accommodated, and states that the five day suspension was because the applicant did not fulfill “modified employment duties” that had been set after a process with the Work Safety and Insurance Board. The respondents note that both grievances are “in abeyance pending the Applicant’s return from sick leave”. According to the respondents’ May 14, 2009 Response, a “Return to Work” meeting for the applicant was scheduled for May 19, 2009.

5The applicant states that the two grievances refer to matters separate from the matters dealt with in the grievances. However, the Application appears to refer only to matters clearly understood by the respondent and the union to pertain to the grievances.

6The Tribunal may defer consideration of an application, on such terms as it may determine, and on its own initiative (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.

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).

8The 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).

9In the present case, the applicant apparently has grievances based on substantially the same facts as the Application. While a date has not yet been set for 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.

10The 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.

11The Tribunal directs the parties’ attention to Rules 14.3 and 14.4. These Rules outline the procedure by which the Application may be brought back before this Tribunal after the conclusion of the grievance process.

12I am not seized.