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HUMAN RIGHTS TRIBUNAL OF ONTARIO
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B E T W E E N:
Jerome Miller
Applicant
-and-
London Transit Commission and Alan Bernard
Respondents
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INTERIM DECISION
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Adjudicator: Alison Renton
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Date: December 1, 2009
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Citation: 2009 HRTO 2071
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Indexed as: Miller v. London Transit Commission
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[1] This is an Application filed on June 29, 2009, under section 34 of Part IV of the [Human Rights Code](https://www.canlii.org/en/on/laws/stat/rso-1990-c-h19/latest/rso-1990-c-h19.html), R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant alleges discrimination on the basis of race, colour, place of origin, ethnic origin, sex and reprisal in employment. The applicant’s allegations arise from an incident with the personal respondent at the “Bus Ball” held on March 21, 2009, for which the personal respondent was criminally charged. The applicant’s allegations also pertain to the corporate respondent, its alleged failure to appropriately address the situation and the suspension that was issued to him. This Interim Decision deals with the issue of whether the Application should be deferred pending the completion of a related grievance proceeding.
[2] The corporate respondent indicates in its Response that the facts of the Application are part of several union grievances that are still in progress, and encloses a copy of the grievances filed on the applicant’s behalf by his union, Amalgamated Transit Union Local 741 (the “union”). The corporate respondent submits that the applicant filed two grievances, both dated May 5, 2009, which relate to and make essentially all of the same allegations as in the Application. The grievances have been referred to arbitration, although an arbitrator has not yet been appointed to hear the grievances. The corporate respondent requests that the Tribunal defer the Application pending the outcome of the grievances.
[3] The personal respondent requests that the Application be deferred pending resolution of his criminal charges. He submits that he would be prejudiced in his criminal proceedings if he were required to testify at a Tribunal hearing before his criminal charges were fully resolved. He also submits that he will rely upon the transcript from the criminal trial to defend against the Application. Further, the personal respondent requests that the Application be dismissed pursuant to [section 34(1)](https://www.canlii.org/en/on/laws/stat/rso-1990-c-h19/latest/rso-1990-c-h19.html)(b) of the [Code](https://www.canlii.org/en/on/laws/stat/rso-1990-c-h19/latest/rso-1990-c-h19.html) because the subject matter of the complaint is “trivial, frivolous, vexatious or made in bad faith”.
[4] The applicant objects to the request for deferral. He submits that the grievances were filed many months ago, remain outstanding and should not “hold up” the human rights proceedings. The applicant states that he wants to put the troubling times behind him and to proceed with the issues in the Application.
[5] 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 (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.
[6] 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](https://www.minicounsel.ca/scc/2003/42)).
[7] The 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.
[8] In this case, it is apparent that there is substantial overlap between the facts and human rights issues covered by the Application and those referred to in the grievances. I am satisfied that the concerns the applicant raises about his grievances do not justify a departure from the Tribunal’s normal approach. The matter is still live and the grievance process has not concluded. If the applicant believes, on conclusion of the grievance/arbitration process, that his human rights issues have not been adequately addressed, he may ask to have his Application brought back on before the Tribunal.
[9] If the criminal charges have not been resolved after the conclusion of the grievance process, the Tribunal will consider, upon request, the personal respondent’s request to defer the Application pending conclusion of the criminal charges. The Tribunal will not address the personal respondent’s submission that the Application ought to be dismissed because it is “trivial, frivolous, vexatious or made in bad faith” as that language no longer applies to the [Code](https://www.canlii.org/en/on/laws/stat/rso-1990-c-h19/latest/rso-1990-c-h19.html). In June 2008, the Code was significantly amended and the language of former section 34(1)(b), which was quoted in the personal respondent’s Response, was removed from the Code.
[10] The Application will therefore be deferred pending the completion of the grievance process. The 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.
[11] I am not seized of this Application.
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Dated at Toronto, this 1[^1] day of December, 2009.
“Signed by”
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Alison Renton
Vice-chair
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minicounsel