HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Michael MacInnis

Applicant

-and-

The Corporation of the City of Guelph and Gord Hunt

Respondents

INTERIM DECISION

Adjudicator: Sheri D. Price

Date: September 1, 2009

Citation: 2009 HRTO 1371

Indexed as: MacInnis v. Guelph (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”) alleging that the respondent discriminated against the applicant on the basis of disability and engaged in reprisals against him in respect of employment.

2Among other things, the applicant alleges that the respondent employer suspended him from work and refused to accommodate him to the point of undue hardship by providing him with work duties within his restrictions after he informed the employer in or around July 2008 that his driver’s license had been suspended for medical reasons. The applicant also alleges that the respondent employer engaged in reprisals against him because he filed a harassment and discrimination grievance against the personal respondent and because he advised the respondent employer, in January 2009, that he was in the process of filing an Application with the Tribunal about the employer’s alleged failure to accommodate him. The applicant alleges that the respondents engaged in reprisal by singling him out for unjust discipline; by refusing to accommodate him at work; and by attempting to have him permanently relinquish his unionized job in order to be temporarily accommodated at work. By way of remedy, the applicant seeks financial compensation in respect of lost wages and other alleged losses, general damages, and other specific and public interest remedies.

3This 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 grievances which, it submits, raise some or all of the same facts and issues as the Application.

4According to the respondent employer, the applicant’s trade union, Amalgamated Transit Union, Local 1189 (“ATU”), filed grievances against the respondent employer on March 18, 2009 and April 24, 2009, regarding some or all of the same facts and issues as the Application. The March 18, 2009 grievance contends that the employer’s alleged refusal to permit the applicant to view his files without someone accompanying him was discriminatory. The remedy sought in respect of that grievance was an apology; permission for the applicant to access his files on his own; and a workplace free from discrimination. In its July 2009 Response, the employer submits that the March 18, 2009 is at Step 3 of the grievance procedure.

5The April 24, 2009 grievance alleges that an April 24, 2009 verbal warning given to the applicant for alleged inappropriate comments was unjust discipline and constituted ongoing harassment. The remedy sought was “full redress” and a workplace free from harassment. The respondent employer submits that the grievance is presently at Step 3 of the grievance procedure under the collective agreement between the ATU and the employer.

6The applicant opposes deferral of the Application on the basis that the facts in the grievances are different from those in his Application. The applicant also submits that the March 18, 2009 grievance is no longer outstanding, having been withdrawn without prejudice by his trade union following the Step 3 meeting, and that, in respect of that grievance at least, there is no ongoing grievance and arbitration procedure to which to defer.

DECISION

7Deferral 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. In determining whether to defer consideration of an Application pending the completion of another legal proceeding, the Tribunal undertakes a two-step analysis. First, the Tribunal considers whether the human rights issues in the Application are being raised in the other proceeding before a decision-maker with authority to determine those issues. If so, as is often the case with grievances filed under collective agreements, the Tribunal will generally defer consideration of the Application. If the human rights issues raised in the Application are not being advanced in the other proceeding, the Tribunal will nonetheless consider whether there are overlapping facts or issues in the Application and the other proceeding which make deferral appropriate. In doing so, the Tribunal may have regard to a number of factors, such as 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.

8This Application relates primarily to the applicant’s claim that the respondents refused to accommodate him by providing him with work within his medical restrictions during the period from approximately July 2008 to March 2009, at which time the applicant appears to have returned to work with the employer without restrictions. Although the March 18, 2009 and April 24, 2009 grievances do allege that the employer’s conduct towards the applicant was discriminatory and harassing in certain limited respects, neither of the grievances appears to raise the central issue in the Application, namely the respondents’ alleged failure to accommodate the applicant.

9Furthermore, the applicant’s reprisal allegations do not appear to be covered by the grievances. Although part of the applicant’s reprisal claim is that the respondent employer unjustly disciplined him, and this is covered in part by the April 24, 2009 grievance, the reprisal claim also encompasses allegations that the respondents refused to accommodate the applicant and attempted to deprive the applicant of his unionized job in retaliation for his attempts to pursue his rights under the Code. These claims do not form part of either of the grievances.

10In these circumstances, I find that deferral of the Application is not appropriate. Some of the facts and issues raised by this Application are part of a grievance and arbitration process that is still in progress, but to a very minor extent. It is clear that that the grievance and arbitration process will not deal with the central claims being advanced in the Application.

11The Request to Defer is denied. I am not seized of this matter.