William Ball v. The City of Hamilton, 2009 HRTO 1930

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

William Ball

Applicant

-and-

The City of Hamilton

Respondent

INTERIM DECISION

Adjudicator: Michelle Flaherty

Date: November 12, 2009

Citation: 2009 HRTO 1930

Indexed as: Ball v. Hamilton (City)

1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”) on June 2, 2009 alleging discrimination in the context of employment on the basis of disability. He also alleges reprisal or threat of reprisal.

HISTORY OF THE PROCEEDINGS

2In essence, the applicant alleges that he was harassed in the workplace and that, upon his return to work following a period of disability, the employer failed to accommodate his disability. The Application names the City of Hamilton as a respondent and identifies the Canadian Union of Public Employees, Local 5167 (“Union”) as an affected party.

3On August 19, 2009, the Union filed a Request to Intervene. It advised the Tribunal of an ongoing grievance proceeding involving the applicant and the respondent. Neither the applicant nor the respondent has responded to the Request to Intervene and the time for doing so under the Tribunal’s Rules of Procedure (“Rules”) has elapsed.

4The respondent filed a Response on August 26, 2009, in which it seeks the deferral of the Application based on the ongoing grievance proceeding.

5The Tribunal issued a Notice of Respondent’s Request to Defer on September 3, 2009 and invited the Union and the applicant to provide written submissions on the deferral issue by September 17, 2009. Neither the Union nor the applicant provided submissions.

6In its Response, the respondent denies the allegations of discrimination and explains that it terminated the applicant’s employment following repeated incidents where the applicant was found to have sexually harassed at least three of his co-workers.

7On March 10, 2009, the Union grieved the termination of the applicant’s employment. The respondent states that the grievance is being referred to arbitration and that the respondent and the Union are in the process of selecting the arbitrator and setting hearing dates.

THE REQUEST TO DEFER

8Section 45 of the Code gives the Tribunal the power to defer an application in accordance with its Rules of Procedure (“Rules”).

9Rule 14.1 of the Rules states:

1The Tribunal may defer consideration of an Application, on such terms as it may determine, on its own initiative, at the request of an Applicant under Rule 7, or at the request of any party.

10The 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.

11Some of the factors that may be relevant in deciding whether to defer consideration of an application before the Tribunal are the subject matter of the other proceeding, the nature of the other proceeding, the types of remedies available in the other proceeding, and whether it would be fair overall to the parties to defer the Application, having regard to the status of each proceeding and the steps that have been taken to pursue them.

12In this case, while there may be some issues raised in the Application that are not referred to in the grievances, I am satisfied that many of the facts and issues raised by this Application are part of a grievance process. Based on the material filed and the nature of the remedies sought in both proceedings, I find that there is a significant overlap between the substance of the Application and that of the grievance.

13In the circumstances, the arbitration proceeding should proceed to its conclusion before the Tribunal will deal with whatever might remain of the merits of the Application.

14Accordingly, the Application will be deferred pending the completion of the grievance and arbitration process.

15The Tribunal directs the parties’ attention to Rules 14.3 and 14.4, which outline the procedure by which a party may request that the Application proceed. The Union’s Request to Intervene can be dealt with by the Tribunal if and when the Application proceeds.

16I am not seized of this matter.