Randy O’Brien v. Corporation of the City of Burlington and Donna Clegg, 2009 HRTO 1818

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Randy O’Brien

Applicant

-and-

Corporation of the City of Burlington and Donna Clegg

Respondents

INTERIM DECISION

Adjudicator: Sherry Liang

Date: October 29, 2009

Citation: 2009 HRTO 1818

Indexed as: O’Brien v. Burlington (City)

1This is an Application filed on June 1, 2009 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”). The applicant alleges that his employment was terminated as a reprisal for filing a prior human rights complaint. He also states that he was on a medical leave and his employer learned that he was helping a friend who was in the trucking business. He states that the reason for his indefinite medical leave was racial harassment in the workplace.

2The applicant’s prior human rights complaint was filed with the Ontario Human Rights Commission on May 26, 2008, and is currently before the Tribunal as Tribunal File No. TR-0240-09 (the “Transition Application”). By Interim Decision, 2009 HRTO 1666, the Tribunal deferred the processing of the Transition Application pending the completion of an arbitration proceeding.

3That Interim Decision referenced a grievance filed by the applicant’s union alleging various breaches of the collective agreement and termination without just cause. The Tribunal noted that this grievance has been referred to arbitration and the arbitration commenced April 1, 2009 and is ongoing. The Tribunal found that there was considerable overlap between the grievance proceedings and the Transition Application.

4The applicant has also identified in this Application that the facts of the Application are part of another proceeding that is still in progress, and has provided the Tribunal with a copy of the same grievance that gave rise to deferral of the Transition Application. He did not request deferral of the Application. The applicant’s union, the Canadian Union of Public Employees, Local 2723, has filed a Request to Intervene and also confirms that many of the same issues in this Application will be litigated in the arbitration of the applicant’s grievance.

5The Response requests deferral or dismissal of this Application, based on the grievance proceeding and the Transition Application. The respondents state, among other things, that the allegations forming the substance of the Application can be addressed in the ongoing Transition Application. In the alternative, the respondents ask that this Application be consolidated with the Transition Application.

6The arbitration of the grievance started on April 1, 2009 and is scheduled to continue on January 4, 2010 and seven additional dates.

7The Tribunal requested that the applicant respond to the request for deferral. The applicant opposes deferral. Among other things, the applicant states that although the grievance disputes his termination, it is not based on allegations of discrimination or reprisal under the Code.

8The 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.

9The 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).

10The Tribunal finds it appropriate to defer this Application pending the completion of the grievance process. The key event at the heart of that grievance, the applicant’s discharge, is also the key event covered by this Application. There may be issues raised by the Application that go beyond those that will be litigated before the arbitrator. However, given the considerable factual overlap between the two proceedings, the potential for the arbitration to determine some of the issues in this Application, and the stage of that arbitration process, the rational and orderly litigation of the various issues between this applicant and his employer favour deferral.

11The Tribunal directs the parties’ attention to Rules 14.3 and 14.4 which outline the process by which the Application may be brought back on after the grievance has been concluded. The respondents may revive their request to dismiss the Application or consolidate it with the Transition Application once this matter is brought back on.

12I am not seized of this matter.