Louis Davis v. The Corporation of the City of Windsor, 2009 HRTO 2002

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Louis Davis

Applicant

-and-

The Corporation of the City of Windsor

Respondent

INTERIM DECISION

Adjudicator: Alison Renton

Date: November 24, 2009

Citation: 2009 HRTO 2002

Indexed as: Davis v. Windsor (City)

1This is an Application filed on June 3, 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 discrimination in employment on the basis of race, colour, and reprisal or threat of reprisal. This Interim Decision deals with the issue of whether the Application should be deferred pending the completion of a grievance proceeding.

2The respondent filed a Response, requesting, amongst other issues, that the Application be deferred because the applicant has an outstanding grievance. The respondent submits that the grievance encompasses some of the same issues as the Application and enclosed a copy of the grievance filed on the applicant’s behalf by his union, Canadian Union of Public Employees, Local 82 (the “union”) as well as a letter from the respondent to the union president following a grievance meeting held on November 6, 2008. The respondent submits that in January 2009 the union advised the respondent that it wanted to refer the grievance to arbitration, but an intervening strike, which lasted 101 days, precluded the parties from making arrangements for arbitration. The respondent submits that arrangements for arbitration can now be made.

3On October 26, 2009, the Tribunal sent a copy of the Response and Notice of the respondent’s Request to Defer to the applicant, and copied to the union. The Tribunal invited the applicant to file submissions in response to the respondent’s request for deferral.

4Although the applicant filed a Reply on November 6, 2009, the applicant did not address the deferral issue. The union has not filed a Request to Intervene, Form 5.

5The 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.

6The Tribunal has generally deferred applications where there is an ongoing grievance under a collective agreement based on the same facts and human rights issues: see Kreiger v. Toronto Police Services Board, 2008 HRTO 183 and Loranger v. Customs and Immigration Union, 2008 HRTO 432.

7In 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: see Blackman v. Ontario (Community Safety and Correctional Services), 2009 HRTO 970 citing Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42).

8The Supreme Court thus confirmed that human rights tribunals are not the only decision-makers that can decide human rights claims. Where the parties are already engaged in a concurrent legal proceeding in which they are raising the same human rights issues before a decision-making body with the authority to make determinations about those issues, the orderly administration of justice favours deferral to the other proceeding. In such a scenario, the Tribunal’s normal approach is to defer to the other proceeding.

9The Tribunal finds it appropriate to defer this Application pending the completion of the grievance process. 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 arbitration to determine some of the issues in this Application, and the stage of that arbitration process, the need for rational and orderly litigation of the various issues between the applicant and his employer favours deferral.

10The Tribunal directs the parties’ attention to Rules 14.3 and 14.4 which outline the procedure by which the Application may be brought back on after the conclusion of the grievance process. The timeliness issue raised by the respondent will be addressed by the Tribunal at that time.

11I am not seized of this matter.