Hatton v. Pollack, 2009 HRTO 1859

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jim Hatton Applicant

-and-

John Pollack Respondent

INTERIM DECISION

Adjudicator: Brian Cook Date: November 9, 2009 Citation: 2009 HRTO 1859 Indexed as: Hatton v. Pollack

1This Interim Decision deals with whether the Application should be deferred because there is a grievance filed under a collective agreement that appears to raise the same issues as are raised in the Application.

2In the Application the applicant noted that he has filed a grievance in relation to matters that appear to relate to the subject matter of the Application. He did not ask that the Application be deferred. CUPE Local 4705 was identified as an affected party.

3The Response also identified the outstanding grievance and noted that the issues raised in the Application were also raised in the grievance. The respondent did not ask that the Application be deferred but appeared to raise some concern about the potential overlap between the Application and the grievance.

4In a letter dated October 8, 2009, the Tribunal Registrar incorrectly indicated that the respondent had asked that the Application be deferred and invited submissions from the applicant and CUPE Local 4705 on whether the Application should be deferred. Submissions were to be filed by October 22, 2009. The Tribunal has not received any submissions on this point although a representative for the respondent contacted the Tribunal to confirm that the respondent wanted the Application to proceed and did not want it deferred.

5On October 26, 2009, the Tribunal received a Request to Intervene from CUPE Local 4705. It notes the outstanding grievance but makes no submissions on the deferral issue.

6Section 45 of the Code confirms the Tribunal’s authority to defer consideration of an application. Under Rule 14.1 of the Tribunal’s Rules of Procedure, the 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. Where the Tribunal intends to defer consideration of an application, it will first give the parties and any identified trade union or occupational or professional organization and any identified affected person, notice of its intention to consider deferral and an opportunity to make submissions (Rule 14.2).

7The Tribunal usually defers an application where there is an ongoing grievance under a collective agreement based on the same facts and issues. The Tribunal may do this even if the parties indicate that they do not want the Application to be deferred. 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.

8There has been some confusion in this case and, perhaps as a result, no submissions have been received on the question of whether the Tribunal should defer the Application until the grievance has been resolved or settled.

9The applicant, the respondent and CUPE Local 4705 shall each have an opportunity to make submissions on whether the Tribunal should defer the Application until the grievance has been dealt with. Submissions must be filed with the Tribunal and the other parties and affected party within ten days of the date of this Interim Decision.

10The parties may wish to review the Tribunal’s Rules and Guide to its processes, available on the Tribunal’s website at www.hrto.ca, before preparing the submissions.

11I am not seized of this matter.