Daniel Parsons v. The Regional Municipality of York, Tony Pulla, David Owen and Joseph Petrungaro, 2009 HRTO 1997

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Daniel Parsons

Applicant

-and-

The Regional Municipality of York, Tony Pulla, David Owen and Joseph Petrungaro

Respondents

INTERIM DECISION

Adjudicator: Faisal Bhabha

Date: November 24, 2009

Citation: 2009 HRTO 1997

Indexed as: Parsons v. York (Regional Municipality)

1This is an Application filed on January 27, 2009, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Application was deferred by the Tribunal on July 13, 2009, 2009 HRTO 1031, pending the conclusion of a grievance. This Interim Decision addresses the applicant’s request to re-activate the Application.

BACKGROUND

2The applicant works as a Lead Operator-Roads in the Transportation Services Branch of the Regional Municipality of York. He alleges that he was subjected to discrimination and harassment on the basis of his disability by his superiors and co-workers, and was sexually harassed by a co-worker. The applicant’s union filed a grievance addressing many of the issues raised in the Application. In the Response, filed on May 27, 2009, the respondent sought deferral of the Application on the basis that the applicant’s complaint of discriminatory treatment formed the basis of the applicant’s grievance and could be dealt with under the collective agreement.

3On July 13, 2009, the Tribunal deferred the Application pending the conclusion of the grievance. At the same time, the Tribunal indicated that where a party wishes to proceed with an application which has been deferred, the party must make a Request for Order During Proceedings in accordance with Rule 19 within 60 days after the conclusion of the other proceeding (Rules 14.3 and 14.4 ).

4On October 13, 2009, the Tribunal received a Request for Order During Proceedings from the applicant requesting that the deferred Application be re-activated (the “Request”). In his Request, the applicant states that as a result of discussions with the union, a decision was reached to withdraw his grievance so he could proceed with the Application. He states that he had no intention of abandoning or delaying his Application and in fact agreed to the withdrawal of his grievance for the express purpose of re-activating the Tribunal process.

5The respondents submit that the Application would be more appropriately dealt with under the Labour Relations Act, 1995, S.O. 1995, c. 1, Sched. A (“LRA”), and that in fact, the grievance process remains available to him. The respondents request that the Application be dismissed for failing to disclose a prima facie case or, alternatively, should continue to be deferred until the grievance process has been finally determined. In the respondent’s submission, because the grievance was withdrawn on a “without prejudice” basis, it is open for the applicant to ask the union to re-activate the grievance and proceed to arbitration. If the applicant is then not satisfied with the union’s representation, the respondents argue that he has remedies available to him under the LRA. Accordingly, the respondents request that the Tribunal exercise its discretion to continue to defer the Application until the applicant has exhausted all of his remedies under the collective agreement and the LRA. In the alternative, the respondents state that they will be relying on the union’s withdrawal of the grievance as evidence of its position on the merits of the Application.

6The union was sent a copy of the applicant’s Request. No submissions were received from the union.

DECISION

7I find that this Application should now proceed in accordance with the Tribunal’s normal procedures.

8In the Tribunal’s earlier Interim Decision on this matter, the Application was deferred pending the conclusion of the grievance. The purpose of the deferral was to avoid duplication of legal proceedings. Now that adjudicative duplication is no longer an issue as a result of the withdrawal of the grievance, the question is whether there remains any significant overlap between ongoing legal proceedings and the Application. The fact that an allegedly preferable forum or alternative avenues exist to adjudicate the matter do not persuade me to order the continued deferral.

9I therefore see no reason to require the applicant to pursue the avenues described by the respondent for re-opening the grievance. At this time, there is no longer any proceeding for the Tribunal to defer to and the applicant is entitled to have his Application proceed before the Tribunal.

10The parties have expressed a willingness to participate in mediation. This matter is referred to the Tribunal’s Registrar to schedule a mediation date.

11As per the Tribunal’s customary practice, the union, as an affected party (and a prospective intervenor), will be invited to attend the mediation. If the mediation does not result in the resolution of the Application, then the outstanding requests (to amend by the applicant and to intervene by the union) will be adjudicated.