Leroy Cox v. Her Majesty the Queen in Right of Ontario as represented by the Minister of Community Safety and Correctional Services, 2009 HRTO 2046

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Leroy Cox

Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Minister of Community Safety and Correctional Services

Respondent

INTERIM DECISION

Adjudicator: Brian Eyolfson

Date: November 27, 2009

Citation: 2009 HRTO 2046

Indexed as: Cox v. Ontario (Community Safety and Correctional Services)

1This is an Application filed on October 27, 2009 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”), alleging discrimination and harassment on the basis of race in employment. The applicant indicated that the facts of the Application are part of a grievance proceeding that is in progress. On November 4, 2009, the Tribunal issued a Notice of Intent to Defer the Application and invited submissions from the parties and the applicant’s union, the Ontario Public Service Employees Union (the “union”), on whether it would be appropriate to defer consideration of the Application pending the resolution of the grievance proceeding.

2The applicant also filed a Request to Expedite Proceedings with his Application, indicating that he is currently awaiting arbitration and feels that the Chair of that proceeding is discriminating against him. The Tribunal directed the respondent, and the union if it sought to intervene, to provide submissions in response to the applicant’s Request to Expedite.

3This Interim Decision deals with the applicant’s Request to Expedite and the issue of whether or not the Application should be deferred.

THE POSITION OF THE PARTIES AND THE UNION

4The respondent provided submissions dated November 10, 2009, supporting deferral of the Application pending the resolution of the applicant’s grievance at the Grievance Settlement Board (the “GSB”). The respondent submits that the applicant filed a grievance on October 20, 2005, as one of many grievors who complained about their treatment and the work environment at the Toronto Jail. These grievances were consolidated and a mediation-arbitration-restoration process was established with a Vice-chair at the GSB. The respondent submits that, as the applicant’s grievance did not settle, it was set down for arbitration on November 26, 2009; however, this date was adjourned by the union at the request of the applicant. It is the respondent’s understanding that the union is awaiting instructions from the applicant regarding the rescheduling of the arbitration. The respondent submits that, as long as the union agrees, there are currently a number of dates scheduled in the near future which could be used to hear the applicant’s matter and the respondent is prepared to have the matter proceed in a timely manner if the union so requests. The respondent submits that there is no reason to expedite the Application.

5The applicant provided submissions dated November 11, 2009, reiterating his request that his Application be expedited and disagreeing with the respondent’s submission that the November 26, 2009 arbitration date was adjourned at his request. He submits that the respondent knew this date could not be accommodated due to other arbitration cases being “pushed back.”

6On November 12, 2009, the union provided a Response to the Request to Expedite and submissions on the issue of deferral, along with a Request to Intervene. It is the union’s position that the Application should not be expedited but should be deferred pending the outcome of the proceedings at the GSB. The union submits that it reached an agreement with the Crown to consolidate some 46 grievances filed by racialized officers at the Toronto Jail alleging racism, including the applicant’s grievance. The union submits that the hearing of those grievances commenced in October 2006 and in the fall off 2007 the parties reached an agreement to develop a mediation-arbitration process. The union’s submissions describe extensive proceedings before the GSB. The union submits that, ultimately, the applicant did not reach a settlement. Initially, arbitrations were to start November 3, 2009, and the applicant’s case was scheduled for November 26, 2009; however, the start of the arbitrations was delayed and, as a result, the applicant’s case is no longer scheduled for November 26, 2009. The union submits that the applicant has since advised that he did not want his case scheduled for arbitration until the Tribunal had ruled on his Request to Expedite. As such, the union has not yet sought a replacement date for the applicant’s arbitration hearing, but submits it will do so as quickly as possible once the Request to Expedite and the issue of deferral of the Application have been dealt with.

7The union also submits that the process being followed at the GSB is eminently fair and just to the applicant and all grievors. The union strongly disputes that the process before the GSB is flawed or that the Vice-chair has discriminated against the applicant in any way.

DECISION

Request to Expedite

8Rule 21 of the Tribunal’s Rules of Procedure provide for applications to be dealt with in an expedited manner in urgent circumstances. In Weerawardane v. 2152458 Ontario Ltd., 2008 HRTO 53, at para. 9, the Tribunal held that, 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.

9Having reviewed the materials, I cannot conclude that this Request to Expedite meets the high threshold required by the Tribunal’s jurisprudence. In my view, the applicant has not described urgent circumstances that may affect the fair and just resolution of the merits of this Application, as required by Rule 21.2 of the Tribunal’s Rules. The applicant’s Request to Expedite the proceedings is therefore dismissed.

Deferral

10Pursuant to Rule 14.1 of the Tribunal’s Rules, the Tribunal may defer consideration of an application, on such terms as it may determine, on its own initiative, or at the request of any party. 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. 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).

11Where 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, Tribunal’s normal approach is to defer to the other proceeding (Thiessen v. Niagara Fallsview Casino Resort, 2009 HRTO 1373).

12In the circumstances, the Tribunal determines that it is appropriate to defer the Application pending completion of the grievance proceeding. The applicant has a grievance based on substantially the same facts and issues as the Application. He has been involved in lengthy proceedings before the GSB and his grievance is ready to proceed to arbitration. The union has indicated that it agrees the applicant has been discriminated against and that it will continue to vigorously advance the applicant’s rights and claims in that regard. Moreover, the arbitrator will have the authority to deal with the human rights issues raised in the grievance. There are no circumstances that would cause the Tribunal to depart from its normal approach.

13The Application will therefore be deferred pending the completion of the grievance proceeding. It is not necessary to deal with the union’s Request to Intervene at this point in time.

14The Tribunal directs the parties’ attention to Rules 14.3 and 14.4 which outline how the Application may be brought back on after the conclusion of the grievance process.

15I am not seized.