Randy O’Brien v. City of Burlington and Donna Clegg, 2009 HRTO 1666

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Randy O’Brien

Applicant

-and-

City of Burlington and Donna Clegg

Respondents

INTERIM DECISION

Adjudicator: Kaye Joachim Date: October 13, 2009 Citation: 2009 HRTO 1666 Indexed as: O’Brien v. Burlington (City)

1This is an Application filed June 1, 2009 under Part VI of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”). The purpose of this Interim Decision is to address the respondents’ request for deferral in light of a parallel arbitration proceeding.

DEFERRAL REQUEST

2The complaint underlying the present Application filed with the Ontario Human Rights Commission on May 26, 2005, alleges discrimination and harassment on the basis of colour, race, ethnic origin, place of origin and disability. On August 22, 2008, the applicant’s union filed a grievance alleging various breaches of the collective agreement and termination without just cause. While it appears that the focus of the grievance is on the dismissal rather than the alleged harassment, there is considerable overlap between the two proceedings.

3The grievance was referred to arbitration and the arbitration commenced April 1, 2009 and is ongoing.

4The 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. The Tribunal will generally defer an application where there is an ongoing grievance under a collective agreement based on the same facts and issues. However, the Tribunal must also 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.

5In my view, in light of the overlapping factual matters and the stage of the arbitration proceedings, the factors favouring deferral of this Application outweigh the factors favouring the Tribunal proceeding with the Application. I realize that the arbitration proceeding may not deal with some aspects of the complaint, but nonetheless the arbitration should be permitted to proceed first.

6Accordingly, the Tribunal will defer the Application. Where a party wishes to proceed with an application which has been deferred, the party must contact the Registrar-Transition no later than 60 days after the conclusion of the other proceeding.