Brett Moreland v. The Corporation of the City of Kingston, 2009 HRTO 1882

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Brett Moreland

Applicant

-and-

The Corporation of the City of Kingston

Respondent

INTERIM DECISION

Adjudicator: Faisal Bhabha Date: November 5, 2009 Citation: 2009 HRTO 1882 Indexed as: Moreland v. Kingston (City)

1The applicant filed an Application under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the "Code") on May 20, 2009. He alleges discrimination on the basis of disability in employment. Specifically, the applicant alleges the respondent refused to accommodate his disability-related needs on the job.

2This Interim Decision addresses a request by the respondent that the Tribunal exercise its discretion to defer dealing with the Application pursuant to Rule 14.1 of the Tribunal's Rules of Procedure due to an ongoing grievance procedure which the respondent alleges deals with the same issue.

3The respondent made its request by way of submissions filed with its Response (Form 2) on June 30, 2009. The Tribunal delivered the Response to the applicant on July 20, 2009, and provided the applicant 14 days to make Reply submissions addressing the respondent's deferral request. No Reply was received by the Tribunal.

4The respondent argues that the applicant's union grievance, which was apparently already in the process of being referred to arbitration at the end of June 2009, covers the same subject matter and issues as this Application. The grievance, dated May 13, 2009, a copy of which was filed with the Response, rests on the applicant's allegation that the respondent breached the terms of the collective agreement by "failing to accommodate me in my current position."

5Pursuant to the Rules, the Tribunal may defer consideration of an application on such terms as it may determine, and on its own initiative. 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. While deferral is not automatic, it is granted to avoid adjudicative duplication. The Tribunal has held:

Some of the factors that may be relevant in deciding whether to defer consideration of an application are 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. (Christianson v. College of Physicians and Surgeons, 2009 HRTO 438 at para. 10).

6There is a public interest in avoiding the duplication of adjudicative proceedings hearing the same evidence and deciding some or all of the same issues. The Tribunal has generally deferred applications where there is an ongoing grievance under a collective agreement based on the same facts and human rights issues: Blackman v. Ontario (Community Safety and Correctional Services), 2009 HRTO 970 at para. 5. 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 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.

7Because the applicant did not avail himself of the opportunity to make submissions, it is impossible to know his position with respect to the issue before me. In any event, it appears from the materials filed that the subject matter of this Application is substantially similar to the subject matter of the applicant's union grievance. The grievance arbitrator has the authority to address the claim of discrimination.

8In such a case, it is inevitable that the Tribunal will be asked to make findings of fact and address issues that will also be before the grievance arbitrator. For this reason, it is appropriate for the Tribunal to exercise its discretion and defer the Application pending the outcome of the grievance arbitration.

9The 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 other proceeding has been concluded.