Nelson Tomas v. Direct Energy, Courtney Gordon and Andrew Steenson, 2009 HRTO 1310

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Nelson Tomas

Applicant

-and-

Direct Energy, Courtney Gordon and Andrew Steenson

Respondents

INTERIM DECISION

Adjudicator: Ken Bhattacharjee

Date: August 25, 2009

Citation: 2009 HRTO 1310

Indexed as: Tomas v. Direct Energy

1The purpose of this Interim Decision is to deal with the issue of whether it is appropriate for the Tribunal to defer consideration of this Application pending the conclusion of a grievance proceeding.

2The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on June 18, 2009, which alleges that the respondents discriminated against him because of his disability and subjected him to reprisal with respect to employment.

3The Application acknowledges that the facts of the Application were part of a grievance proceeding, but states that the proceeding is “completed”. However, the applicant attached an Arbitration Decision dated May 6, 2009, which appears to indicate that the proceeding is not complete.

4On July 23, 2009, the Tribunal issued a Notice of Intent to Defer to the parties and the applicant’s union, which stated:

The Tribunal has determined that it may be appropriate to defer consideration of [the Application] pending the resolution of another legal proceeding dealing with the subject-matter of the Application, pursuant to Rule 14 of the Tribunal’s Rules of Procedure.

In this case, the Applicant has sent the Tribunal a copy of a decision of an arbitrator (Kevin M. Burkett) dated May 6, 2009. Mr. Burkett has remained ‘seized to deal with issues related to the Employer’s duty to accommodate to the point of undue hardship.’ It appears therefore that there will be a further process in which accommodation is to be negotiated between the Applicant and his employer. The arbitrator has remained seized to deal with the issues arising in this process.

5The Notice invited submissions from the parties and the applicant’s union within 14 days. As of the date of this decision only the respondents Energy Direct and Courtney Gordon had provided submissions.

6The respondents Energy Direct and Courtney Gordon request that the Tribunal dismiss or defer the Application because the issues raised in the Application are identical to those dealt with in the arbitration, and the arbitrator remains seized with respect to any outstanding issues, including the applicant’s return to work.

7Rule 14.1 of the Tribunal’s Rules of Procedure states that it may defer consideration of an application, on such terms as it may determine, on its own initiative or at the request of any party. The Tribunal will 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. The Tribunal will generally defer an application where there is an ongoing grievance under a collective agreement based on the same facts and issues.

8In my view, deferral is the most fair, just and expeditious way of proceeding with the Application. The facts and issues raised in the grievance are largely the same as those raised in the Application to the Tribunal, and the labour arbitrator has the authority to interpret and apply the Code to address any allegations of discrimination and reprisal. Furthermore, the grievance and arbitration process is still in progress, and neither the parties nor the union have identified any particular circumstance which would cause the Tribunal to depart from its normal approach.

9Accordingly, the Tribunal orders the deferral of the Application pending the conclusion of the grievance proceeding.

10Where a party wishes to proceed with an Application which has been deferred, the party must make a Request for an Order During Proceedings in accordance with Rule 19 within 60 days after the conclusion of the other proceeding (Rules 14.3 and 14.4).

11I am not seized of this matter.