Traversy v. Mississauga (City), 2009 HRTO 2170

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Norman Traversy Applicant

-and-

The Corporation of the City of Mississauga, Hazel McCallion, John McDougall, Kevin Duffy, Brian Walsh, Louise Ann Riddell, Roger Clement, and Janice Baker Respondents

INTERIM DECISION

Adjudicator: Ena Chadha Date: December 14, 2009 Citation: 2009 HRTO 2170 Indexed as: Traversy v. Mississauga (City)

1The applicant filed an Application with the Tribunal on May 28, 2009 alleging discrimination and reprisal in employment on the basis of disability contrary to the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”). The applicant alleges that his employment was terminated in February 2009 because he had previously filed a human rights complaint against his employer.

BACKGROUND

2In two previous Interim Decisions, 2009 HRTO 990 and 2009 HRTO 1278, the Tribunal raised the issue of whether the applicant’s previous human rights complaint filed with the Ontario Human Rights Commission (“Commission”) was with respect to some or all of the subject-matter of his current Application and required the parties to file submissions regarding whether or not the current Application is barred by virtue of section 53(8) of the Code. The Tribunal received and reviewed detailed submissions from the parties addressing the issue of section 53(8) of Code. This Interim Decision determines the section 53(8) issue.

3In Interim Decision, 2009 HRTO 990, the Tribunal further indicated that it will consider the issue of deferral and the respondents’ Request to Dismiss after deciding whether or not section 53(8) applies to bar this Application. This Interim Decision also determines the deferral issue.

SECTION 53(8) DECISION

4Section 53(8) of the Code states that no application, other than an application under subsection (3) or (5), may be made to the Tribunal if the subject-matter of the application is the same or substantially the same as the subject-matter of a complaint that was filed with the Commission under the old Part IV of the Code. Section 53(3) permitted an applicant to abandon a complaint before the Commission and make a transitional application based on the subject-matter of that complaint to the Tribunal between June 30, 2008 and December 30, 2008.

5The applicant provided a copy of his human rights complaint dated October 17, 2007. It appears that the applicant abandoned this Commission complaint and opted to file a section 53(3) Transitional Application with the Tribunal, which was eventually settled by way of Minutes of Settlement in November 2008. The Minutes of Settlement indicate that, while the parties agreed to resolve the Transitional Application without a further hearing by the Tribunal, the applicant was not prevented “from filing a further application or making a further claim for events arising after October 17, 2007.” The applicant argues that his previous complaint is in no way similar or substantially the same as his current Application because the current Application makes allegations of retaliatory dismissal, whereas the previous complaint set out his concerns regarding discriminatory treatment and failure to accommodate during the course of his employment.

6The respondents also filed copies of the human rights and settlement documentation. The respondents submit the allegations contained in the current Application constitute substantially the same allegations contained in the original human rights complaint. The respondents argue that the applicant relies on his past history as detailed in his previous complaint to make out his claim of reprisal as alleged in the current Application. The respondents submit that the applicant cannot simply rely on incidents that have already been dealt with in an earlier complaint to make out a case of on-going discrimination. As such, the respondents ask that the Tribunal dismiss the current Application on the basis of section 53(8) of the Code, or alternatively, strike out all of the allegations in the current Application which were resolved by way of the November 2008 Minutes of Settlement.

7The Tribunal finds that the applicant’s current Application and the previous human rights complaint do not address the same or substantially the same subject-matter. While the current Application and the previous complaint arise out of the applicant’s concerns regarding his employment, the allegation of retaliatory dismissal is new, separate and distinct from the previous allegations of poisoned work environment and failure to accommodate. The current Application pertains to the applicant’s specific concern that, because of his past human rights complaint, the respondents terminated his employment in February 2009 as a form of reprisal. The applicant states that he is “not trying to revisit the previous complaint” and that he provided a “partial history of the events” in the Application narrative because the Tribunal forms require background information.

8In this case, section 53(8) should not be interpreted to preclude new allegations of reprisal pertaining to a period of time subsequent to the previous complaint, particularly as these parties settled the previous complaint with the expressed understanding that the applicant was not prevented from filing a further application regarding events arising after October 17, 2007. To interpret section 53(8) so as to bar the current Application would be contrary to the long-standing human rights principle that the Code should be interpreted in a broad and purposive manner. I see no basis, nor any purpose consistent with the Code, to interpret section 53(8) so as prevent the applicant from pursuing allegations of reprisal which are new and distinct from his previous allegations of discriminatory treatment. However, allegations of reprisal should not be used to revisit or resuscitate allegations and issues raised in a previous human rights complaint. Should the applicant attempt to make allegations in this proceeding regarding any of the events referred to in his previous complaint or current Application which occurred on or before October 17, 2007, it remains open to the respondents to argue an abuse of process.

DEFFERAL DECISION

9On June 1, 2009, the Tribunal issued a Notice of Intent to Defer pending the resolution of a related grievance proceeding. The Tribunal invited the parties to make submissions as to why consideration of this Application should or should not be deferred.

10The applicant argues that the matter should not be deferred because the respondents have “deliberately stalled” his grievance regarding the termination of his employment and have refused several requests to expedite the grievance process. The applicant indicates that the first day of the hearing into his grievance is scheduled for April 28, 2010, approximately 16 months after his employment was terminated.

11The respondents submit that the current Application makes the same allegations as those in issue in the grievance that has been referred to arbitration. The subject matter of the grievance includes the applicant’s termination of employment, as well as issue of workplace accommodation. The respondents also request that the Application be dismissed as an abuse of process because the applicant is pursuing a grievance arbitration regarding the same matters as set out in his Application.

12Deferral of an application ensures that proceedings dealing with the same issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law. The Tribunal will generally defer an application where there is an ongoing grievance under a collective agreement based on the same facts and issues: see Krieger v. Toronto Police Services Board, 2008 HRTO 183, and Loranger v. Customs and Immigration Union, 2008 HRTO 432.

13In 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.

14The applicant’s grievance includes allegations pertaining to the same facts and issues as set out in this Application, including retaliatory dismissal.

15In these circumstances, the Tribunal finds the most fair, just and expeditious approach is to defer consideration of this Application pending the conclusion of the grievance arbitration. The two proceedings raise similar facts and issues and involve the same parties. The grievance process is ongoing and is scheduled for hearing on April 28, 2010.

16The Tribunal orders that this Application be deferred pending the conclusion of the grievance arbitration process. The Tribunal directs the parties’ attention to Rules 14.3 and 14.4 which outline the process by which a party may request, in accordance with Rule 19, that the Tribunal proceed with an application after the conclusion of another process.

17At this time and in the circumstances, there is no need to consider the request to dismiss. In addition, as noted in the earlier Interim Decisions, the respondents have requested that the Tribunal remove all personal respondents. The Tribunal will consider the respondents’ Request to Dismiss and Request to Remove Personal Respondents if this matter is brought back on after the conclusion of the grievance proceeding.