Harris v. Liquor Control Board of Ontario, 2009 HRTO 2037

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Stephen Harris

Applicant

-and-

Liquor Control Board of Ontario

Respondent

INTERIM DECISION

Adjudicator: Alan Whyte

Date: November 27, 2009

Citation: 2009 HRTO 2037

Indexed as: Harris v. Liquor Control Board of Ontario

1In this Application under s. 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), the applicant alleges discrimination in employment on the ground of family status.

2The applicant is a casual employee of the respondent and is scheduled to work on December 24, 2009. He states that his wife attends religious observance on that day. The applicant and his wife have a 6 month old baby whom, he submits, requires the care of his parents at all times. The applicant has asked the respondent for the day off on December 24, 2009, to take care of his child but that request has been refused.

3The applicant is a member of an OPSEU bargaining unit and filed a grievance dated October 2, 2009 as a result of the circumstances described above. By letter dated October 9, the Tribunal raised the possibility of deferral of the Application pending the resolution of the applicant's grievance and requested that submissions be filed by November 12, 2009. Both parties provided such submissions.

4The applicant also filed a Request to Expedite and the respondent filed a Response to the Request to Expedite.

5This Interim Decision will first address the Request to Expedite and will then determine the course of proceedings in light of the deferral issue.

Request to Expedite

6A Request to Expedite Proceedings must describe urgent circumstances that may affect the fair and just resolution of the merits of the Application and the harm that would result if the request is denied. In Weerawardane v. 2152458 Ontario Ltd., 2008 HRTO 53, at paragraph 9, the Tribunal stated:

For a request to expedite to be granted, the applicant must demonstrate that the circumstances are truly urgent, requiring the resolution of the human rights dispute in a particularly rapid manner as compared with the time required to complete the Tribunal’s regular process.

7The Tribunal’s Rule 21.2 provides as follows:

A Request to Expedite an Application under Rule 21.1 must describe:

a) any urgent circumstances that may affect the fair and just resolution of the merits of the Application;

b) the harm that would result if the request is denied; and

c) whether the other parties consent to the request.

8The applicant’s Request to Expedite Proceedings was completed in a very summary way and must be read with the contents of his Application. The applicant says that his wife must attend masses and engage in silent contemplation and devotion on December 24, and that if she is not able to do so, she will suffer mental, emotional, physical and spiritual pain, distress and misery. Regarding the baby, the applicant states that there are no family or close relations in the area who can look after the baby on December 24, that the applicant and his wife cannot afford a babysitter, and that the baby is going to be very uncomfortable and fussy if he is taken care of by a stranger. He alleges that the baby will suffer emotional and mental suffering if he is left in the care of a stranger.

9In its Response to the Request to Expedite, the respondent states that the applicant has not met his burden to demonstrate "urgent circumstances" to support the Request to Expedite, nor has he adequately described "the harm that would result if [the] Request is denied". The respondent states that the applicant has failed to identify the religious holiday or holy day that his wife is allegedly required to observe on December 24. Furthermore, to the extent that the applicant's position rests on his inability to afford a babysitter, the applicant submits that financial harm, by itself, does not warrant expediting the Application. Finally, the respondent submits that the applicant and his wife have had time to secure appropriate childcare, and that his assertion that his child will suffer harm by being in the care of a stranger is broad and unsupported.

10Having reviewed the materials, I cannot conclude that this Request to Expedite meets the high threshold required by the Tribunal’s jurisprudence. The issue of whether the applicant will have December 24 off has been an issue since late September or very early October, 2009. To the extent that the applicant relies on his financial inability to afford a babysitter, as stated in Silverberg v. Metropolitan Condominium Corporation Number 757, 2009 HRTO 910:

Many cases where an applicant alleges discrimination will involve financial hardship. Purely financial losses will rarely constitute urgent circumstances, which would prevent the Tribunal from fairly and justly dealing with the merits of the Application in accordance with its usual expeditious procedures within the meaning of Rule 21.2.

11I also find that the applicant's broad assertions that his wife must attend masses and engage in silent contemplation on December 24 and that if she is not able to do so she will suffer mental, emotional, physical and spiritual pain, distress and misery, and further, that his baby cannot be left in the care of a person other than he and his wife, lack support in the materials. The Request to Expedite is denied.

Deferral

12The respondent submitted that the most appropriate venue for the resolution of the applicant’s issues is under the grievance and arbitration processes provided for in the collective agreement between the respondent and OPSEU. It points to the statutory framework governing the resolution of such issues found in the Crown Employees Collective Bargaining Act and the Labour Relations Act. The respondent also points to the fact that the grievance raises identical issues to those raised in the Application and that to allow both proceedings to go forward simultaneously would result in consideration of those issues in multiple forums, a duplication of proceedings and the potential for inconsistent results. In addition, the Crown Employees Grievance Settlement Board has the authority and is fully capable of addressing the issues raised in the Application.

13The 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.

14The Tribunal has generally deferred applications where there is an ongoing grievance under a collective agreement based on the same facts and human rights issues. 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 and other employment-related statutes 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).

15In this case, there is complete overlap between the facts and issues underlying the grievance and this Application. According to the respondent, the applicant's grievance was referred by OPSEU on behalf of the applicant to stage 3 of the grievance procedure on November 4, 2009. A decision with respect to that grievance will be made by the respondent on or before December 4, 2009. However, the applicant is concerned that if the grievance is not resolved, he will not be able to secure the remedy that he seeks in time, that being having December 24 off, under the grievance process.

16Given the decision above to not expedite this Application, the Tribunal will likely not be able to render a decision prior to December 24 either. Consequently, the usual considerations related to deferral apply. As stated above, the Tribunal's usual approach is to defer to an ongoing grievance process, and there is no reason to depart from that approach in this case.

17The applicant will have remedies available to him should he be successful either in front of an arbitrator or the Tribunal, if this Application is returned to the Tribunal.

18The 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.

19I am not seized of this matter.